Wingert v. Philadelphia & R. Ry. Co.
| Decision Date | 17 July 1918 |
| Docket Number | 70,69 |
| Citation | 262 Pa. 21,104 A. 859 |
| Parties | Wingert v. Philadelphia & Reading Railway Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued June 5, 1918
Appeals, Nos. 69 and 70, Jan. T., 1918, by defendant, from judgment of C.P. Cumberland Co., Feb. T., 1917, Nos. 153 and 154, in cases of Daniel H. Wingert v. Philadelphia and Reading Railway Company. Affirmed.
Trespass for personal injuries to plaintiff and damage to plaintiff's automobile. Before SADLER, P.J.
The facts appear by the opinion of the Supreme Court.
Verdict for plaintiff for $4,200 and judgment thereon. Defendant appealed.
Error assigned, among others, was in refusing defendant's motion for judgment non obstante veredicto.
The judgment is affirmed.
J. W Wetzel, for appellant.
Edmund C. Wingerd and Joseph P. McKeehan, with them D. Edward Long for appellee.
Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING and SIMPSON, JJ.
This action is to recover damages for injuries sustained by plaintiff as the result of a collision between his automobile and defendant's train at a grade crossing. In the court below one of the questions in dispute was whether or not the crossing was private, or a permissive public one. This question, however, the jury found in favor of plaintiff and we find no complaint here as to the propriety of the action of the court in submitting it to them. The negligence of defendant and contributory negligence of plaintiff were also submitted to the jury. A verdict was rendered in favor of plaintiff and the subsequent motion for judgment for defendant non obstante veredicto was refused. The questions for consideration are the sufficiency of evidence of negligence on the part of defendant to submit to the jury, and whether plaintiff was guilty of contributory negligence, as a matter of law.
At the time of the accident plaintiff was driving an automobile in which were his wife, son and three other passengers. The road on which he approached the crossing is a narrow one and, after crossing the tracks, ascends a grade at the opposite side to reach the level of the adjoining land. There are two tracks of the railroad, both of which plaintiff crossed in safety. He was, however, owing to the almost impassable condition of the road, unable to ascend the grade on the opposite side, and, the road being of insufficient width to permit the car to be turned, was obliged to return to the main road and to do so was required to back the automobile across the tracks. Plaintiff testified that before reversing the car he stopped, opened the side curtains and looked and listened at a point six feet from the nearest or eastbound track, from which place he had an unobstructed view of the railroad for a distance of approximately 641 feet in the direction from which the train approached. At that distance from the crossing was a curve in the railroad which, in connection with the embankment along the side, obstructed a further view of the track. Plaintiff stated he neither saw nor heard a train and proceeded to back the car across the nearest track, and, when about the middle of the second or westbound track, he first saw the train approaching around the curve. Being of opinion danger could be more readily avoided by going forward instead of backward, he reversed the direction of his car and had almost cleared the track when the train crashed into the rear end of the automobile.
It is conceded no whistle was blown; defendant's evidence however, is that the bell was rung when the train was in the neighborhood of 100 yards from the crossing. This is denied by plaintiff and by his son, who was sitting with him on the front seat of...
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