Weber v. Pittsburgh & West Virginia Railway

• Decision Date: 12 May 1930
• Docket Number: 93
• Citation: 150 A. 624,300 Pa. 351
• Parties: Weber, Appellant, v. Pittsburgh & West Virginia Railway
• Court: Pennsylvania Supreme Court

150 A. 624

300 Pa. 351

Weber, Appellant, v. Pittsburgh & West Virginia Railway

No. 93

Supreme Court of Pennsylvania

May 12, 1930

Argued March 26, 1930

Appeal, No. 93, March T., 1930, by plaintiff, from judgment of C.P. Allegheny Co., July T., 1928, No. 2376, for defendant n.o.v., in case of Jessie M. Weber v. Pittsburgh & West Virginia Railway Co. Affirmed.

Trespass for death of plaintiff's husband. Before GRAY, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $12,000. Judgment for defendant n.o.v Plaintiff appealed.

Error assigned, inter alia, was judgment, quoting record.

The judgment is affirmed.

John M Reed, for appellant.

Albert B. Graver, with him John S. Wendt, of Wendt, Graver & Richardson, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff brought this action to recover damages for the death of her husband, who was struck and instantly killed while driving his automobile over a grade crossing of defendant's railroad. The jury's verdict was in her favor, but the court entered judgment for defendant non obstante veredicto, from which action she appeals.

The deceased approached the railroad on a highway with an ascending grade which flattened out at the crossing. The railroad consisted of two tracks, a main and side one. From the direction he was approaching the side track was first reached. On it freight cars were standing on both sides of the crossing. The highway was paved with asphalt level with the rails. It did not extend across the railroad at right angles, but diagonally at an acute angle, the bearing of the angle being to the driver's right. The train which struck his automobile in the center, a heavy freight consisting of thirty-five cars, loaded with steel, came from his left on the main track. There was evidence, although contradicted, sufficient to take the question of defendant's negligence to the jury, that of persons in position to hear and whose attention was given to the matter that no signal was sounded of the train's approach. The phase of the case with which we have to deal is the alleged contributory negligence of the deceased, which the court below determined was established by the testimony as a matter of law, warranting the judgment which it entered.

As deceased proceeded along the highway there was no observation possible of the main track in the direction of the approaching train, owing to a high bank and to freight cars standing on the side track 50 feet from the center of the crossing. Plaintiff produced no evidence that her husband stopped, looked and listened as he approached the crossing; she relied entirely on the presumption that he did. A disinterested witness called by defendant, who watched him as he drove along the road and until the collision took place, said that he did not; members of the train crew who observed his approach testified to the same effect.

Our very careful reading and consideration of the evidence has convinced us that the determination reached by the trial court is right, that the deceased could not have taken the precaution for his safety which the law requires of one about to cross the track of a railroad.

The train was running at from 18 to 22 miles an hour, the automobile, a Ford coupe, somewhere between 5 and 10 miles an hour. The deceased was not traveling at right angles to the tracks but diagonally. He lived in the neighborhood, drove over...