Wink v. Western Maryland Railway Co.
| Decision Date | 01 February 1935 |
| Docket Number | 43-1934 |
| Parties | Wink et al., Appellants, v. Western Maryland Railway Company |
| Court | Pennsylvania Superior Court |
Argued October 23, 1934
Appeal by plaintiffs from judgment of C. P., Franklin County October T., 1932, No. 403, in the case of E. R. Wink, and his minor son, Holland C. Wink, by his father and next friend, E R. Wink, v. Western Maryland Railway Company.
Trespass for personal injuries and damage to personal property. Before Davison, P. J.
The facts are stated in the opinion of the Superior Court.
Verdict for parent plaintiff in amount of $ 607.50 and for minor plaintiff in amount of $ 1,500. Judgment n. o. v. entered for defendant.
Error assigned was grant of judgment n. o. v.
Affirmed.
Edmund C. Wingerd, for appellants.
Paul S. Parsons, and with him Edwin D. Strite, for appellee.
Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.
On the night of October 11, 1931, Holland C. Wink, nineteen years of age, was driving a closed automobile, which belonged to his father, on an improved highway southward towards Waynesboro, at a rate of 25 to 30 miles an hour. He had gone down a hill 600 or 700 feet long and had proceeded on the level approximately 100 or 120 feet, when he collided with the 39th and 40th cars of a freight train, composed of 96 cars, which was passing over a road crossing. The minor plaintiff testified that his brakes were in good condition and his lights were regulated in accordance with the laws of the Commonwealth of Pennsylvania, but that as there was a little fog he was unable to see the freight train until he was within 20 or 30 feet of it. He then turned sharply to the right, but was unsuccessful in avoiding a collision.
An action was brought to recover for personal injuries and damages to the car, etc. Verdicts were rendered in favor of the plaintiffs. The learned court below in sustaining a motion for judgment n. o. v. for defendant held that, although there was sufficient evidence to submit to the jury the question of defendant's negligence, the minor plaintiff was guilty of contributory negligence.
The appellate courts have frequently ruled that, notwithstanding road and weather conditions, it is the duty of an automobile driver to have his car under such control that he may discover a grade crossing or any other obstacle in his immediate path in time to enable him to stop within the range of his lights, or turn the car to avoid danger.
In Milliken v. United Laundries, 105 Pa.Super. 286, 288, 161 A. 873, the plaintiff was driving his automobile on a dark, foggy night at a speed of 30 or 35 miles an hour and ran into a truck. This court, speaking through Judge Gawthrop, said: See, also, Serfas v. Lehigh & New Eng. R. R. Co., 270 Pa. 306, 113 A. 370; Hilton v. Blose, 297 Pa. 458, 147 A. 100; Mason v. Lavine, Inc., 302 Pa. 472, 153 A. 754; Simrell v. Eschenbach, 303 Pa. 156, 161, 154 A. 369; Morin v. Kreidt, 310 Pa. 90, 164 A. 799.
The appellants have called to our attention Clamper v. Phila., 279 Pa. 385, 124 A. 132; Lane v. Mullen, Inc., 285 Pa. 161, 131 A. 718; O'Rourke v. Washington City, 304 Pa. 78, 155 A. 100; and Eddy v. Reed, 86 Pa.Super. 578.
In the Clamper case, a rope was stretched across the street 4 to 6 feet above the roadway and out of the direct rays of a headlight. The court found that the rope was too small, as it could not be seen under such circumstances.
In the Lane case, the plaintiff saw a large unlighted steam shovel, which had been parked on the street for the night. He swerved suddenly to the left, clearing the main body of the steam shovel but hitting a coal box which projected about 18 inches from the left side, and which was a little more than 4 feet from the ground, which would not have been disclosed by proper lights.
In the O'Rourke case, the plaintiff drove his automobile into an embankment 6 to 8 feet high extending from curb to curb at the end of a street. The plaintiff claimed that the level of the street made it impossible for his headlights to disclose this embankment until he was too near to stop, and that the defendant was guilty of negligence in not maintaining a light or other warning there. The court held, however, that the plaintiff was guilty of contributory negligence, as a matter of law, in that he failed to have his car under such control as to enable him to stop within the range of his headlights.
In the Eddy case, the plaintiff was driving his car on a dark, foggy night at a speed of about 15 miles an hour and ran into a pole which extended about 10 feet from the back of a wagon. There was no light on either the rear of the wagon or the pole. In such circumstances, we held that the case was for the jury.
We think those cases are inapplicable to the facts before us.
Considering the evidence in the light most favorable to the plaintiffs, by accepting as true all the facts and proper inferences of fact which tend to sustain plaintiffs' contention, the minor plaintiff was guilty of contributory negligence.
The appellants maintain that even if the lower court was correct in holding that the minor plaintiff was guilty of contributory negligence, as a matter of law, his negligence could not be imputed to the father, the owner of the car, and preclude his recovery for damages to his car and expenses incurred as a result of his son's injury, as the defendant was negligent. The appellee states that the question of the father's right to recover in the event it was determined that the son was guilty of contributory negligence was not presented to the lower court, and therefore, ought not to be considered here (McLaughlin et ux. v. Monaghan, 290 Pa. 74, 138 A. 79); and argues that if the minor was guilty of contributory negligence, the father can not recover for the loss of his son's services and for medical and other expenses in treating his injury: Tidd v. Skinner et al. (N. Y.), 225 N.Y. 422, 122 N.E. 247; Callies v. Reliance Laundry Co. (Wis.), 188 Wis. 376, 206 N.W. 198; Thibeault v. Poole (Mass.), 283 Mass. 480, 186 N.E. 632; Winner v. Oak. Tp., 158 Pa. 405, 27 A. 1110, 1111. It is not necessary, however, to elaborate on that contention, for, in our judgment, there was no evidence to sustain a finding that the defendant was guilty of negligence. The testimony shows that there was a highway crossing sign of the Pennsylvania Highway Department 370 feet on the north side of the crossing and 15 feet from the center of the road, but that it could not be seen at...
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