Witmer v. Bessemer & Lake Erie R.R. Co.
| Decision Date | 12 May 1913 |
| Docket Number | 122 |
| Citation | 241 Pa. 112,88 A. 314 |
| Parties | Witmer v. Bessemer & Lake Erie R.R. Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 29, 1913
Appeal, No. 122, Jan. T., 1913, by defendant, from judgment of C.P. Erie Co., May T., 1909, No. 18, on verdict for plaintiff in case of William A. Witmer v. Bessemer & Lake Erie Railroad Company. Affirmed.
Trespass to recover damages for personal injuries. Before WALLING P.J.
From the record it appeared that at the time of the accident plaintiff was riding in an automobile driven by another under the plaintiff's direction, along Poplar street, in the City of Erie. Upon Twelfth street, crossing Poplar street, were constructed two tracks of defendant railroad company, consisting of a main track and a siding. The distance between the two tracks was eight feet four inches. As the automobile approached the tracks, it stopped for the purpose of enabling plaintiff and the driver to look and listen for a train, but on account of intervening cars, the view of the main track was somewhat obstructed. Neither the plaintiff nor his driver went forward to look for approaching cars, nor did the automobile stop the second time after starting to make the crossing. The automobile first crossed the switch and the rear portion of it was struck on the main track by defendant's locomotive, which there was evidence to indicate was running at a negligently high rate of speed, without signals. There was evidence that after crossing the switch, plaintiff and his driver could have seen the approaching train and could then have stopped the automobile before reaching the main track; plaintiff's evidence indicated that the approaching train was not in fact seen until the front wheels of the automobile were on the main track.
Verdict for plaintiff for $4,582.74, of which $400.00 was remitted by the plaintiff, and judgment for $4,182.74. Defendant appealed.
Errors assigned, among others, were the refusal of the court to direct a verdict for defendant, and to enter judgment for defendant n.o.v.
Judgment affirmed.
Frank Gunnison, of Gunnison, Fish, Gifford & Chapin, with him Templeton, Orr & Whiteman, for appellant.
John R. Brooks, of Brooks & English, for appellee.
Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
The single question for decision here is whether appellee should be declared guilty of contributory negligence as a matter of law. There is positive testimony that the driver stopped looked and listened at the proper place before attempting the crossing and that the approaching train was not then in view. The fact that the driver did not stop his motor car at the customary place before proceeding to cross the tracks of appellant company is not seriously controverted. But even if this were a controverted question in the case under the evidence it was for the jury to determine the fact. This question was submitted to the jury, as was every other question of fact in the case, by the learned trial judge in a charge which impartially explained the respective contentions of the parties and the rules of law applicable to the facts. There can be no just criticism of the manner in which the trial judge submitted the case to the jury. It is argued for appellant that even if the driver of the motor car did stop at a proper place before proceeding to cross the railroad tracks at grade, he was not relieved from the duty of exercising due care after being committed to the crossing, and if during the time his car was on the tracks of the railroad company he saw the approaching train and could have avoided the collision by stopping his car until the train passed, it was his duty to do so, and failure to perform this duty was contributory negligence which would bar a recovery in the case. This may all be conceded but the question still remains what tribunal shall determine whether there was negligence by reason of failure to perform the duty suggested under all the circumstances of...
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