Hess v. Williamsport & North Branch Railroad ( 1897 )

Opinion by

Mr. Justice Dean,

The defendant’s employees, at about eight o’clock in the even ing of August 25, 1894, ran a locomotive and tender over the Philadelphia and Reading railroad. There were upon the locomotive and tender a conductor, brakeman, engineer, fireman and flagman; the locomotive was running at about the rate of eighteen miles an hour, the tender in front, towards Montgomery station. About a mile from the station is a highway grade crossing, and on the crossing it collided with a two horse lumber team, then being driven by James T. Hess, the husband of plaintiff, who was seated on top of his load; he was fatally injured by the collision, and plaintiff brought this suit for damages, averring the accident was the result of negligence of defendant in running the locomotive with speed, tender in front, and in not giving warning of its approach to the crossing. The court below submitted the evidence of defendant’s negligence and contributory negligence on part of deceased to the jury, who found for plaintiff in sum of $10,000. We now have this appeal by defendant, assigning principally for error the refusal of the court to peremptorfly instruct the jury that, on the undisputed facts, deceased was guilty of contributory negligence in using the crossing when the locomotive in full view was approaching it.

On. the undisputed facts was deceased negligent ? The five persons on the locomotive, whose duty it was to give warning or see that it was. given, each testified positively that lights were displayed, bell rung and whistle blown on approaching the crossing ; two witnesses walking along the track testify negatively they did not see the lights nor hear bell or whistle. Although the decided weight of the evidence on this point was with defendant, we assume that there was more than a scintilla on part of plaintiff, for, the learned judge of the court below, with the witnesses before him, thought so, and submitted the dispute on that evidence to the jury. His instructions, however, as to the relative value of positive and negative testimony were very meager; they were inadequate, in view of the nature of the testimony, and in this particular, under the authority of Urias v. Railroad Company, 152 Pa. 326, there was error.

But under the authorities, how stands the case on other undisputed evidence? The highway, before it makes the crossing, runs almost parallel with the railroad for one hundred and fifty feet, and then, in a distance of more than one hundred feet additional, reaches the railroad track where the collision occurred; and- for this whole distance of more than two hundred and fifty feet the railroad track on which the locomotive was coming was visible for nearly a mile. Assuming deceased stopped, looked and listened at any point of this two hundred and fifty feet he must have been apprised of the coming danger, and have been able to avoid it, if there was no insuperable obstacle to. sight and sound. It is alleged, however, the night was dark, and he could not see the locomotive, because no lights were on the tender; but the locomotive headlight, with all its glare, was on the front of the engine; this light was reflected outside the rails on each side; the body of the engine could not obscure it entirely; the fires under the boilers were doing their work; the stroke of the lever was kept up; the exhaust of the engine did not cease; the rumbling of the wheels on the rails was not muffled; the undeniable fact is that there were sight and sound of this engine for half a mile before it reached the crossing. We say undeniable, because to deny it is out of accord with the proof and our observation and experience. We must, in the administration of justice, adopt that as truth which our ordinary senses demonstrate to be true. If this unfortunate man conld see and hear, which is not questioned, then before he drove on the track he saw and heard this coming engine and, miscalculating the speed of his own team as compared with that of the locomotive, met his death; the law calls this contributory-negligence, and prohibits a recovery. “ One who is struck by a moving train which was plainly visible from the point he occupied when it became his duly to stop must be conclusively presumed to have disregarded that rule of law and of common prudence, and to have gone negligently into an obvious danger: ” Myers v. Railroad Co., 150 Pa. 386 ; Marland v. Railroad Co., 123 Pa. 487; Gangawer v. Railroad Co., 168 Pa. 265.

The judgment is reversed.