Senft v. Western Maryland Railway Co. , 246 Pa. 446 ( 1914 )

Per Curiam,

A motor car in which the plaintiff was riding with her husband was struck by an engine at a grade crossing and she was injured. The car was operated by her husband and when it was forty feet from the railroad track she told him to look out for a train. He threw out the clutch and while his car was drifting on an up grade, he rose from his seat to obtain a better view, looked at his watch to learn whether a train was due, remarked to her that the train had passed, resumed his seat and when within twenty feet of the track he threw the clutch in and his car ran in front of the engine. The plaintiff had continued to look and listen for a train from the time she cautioned her husband, and first saw it when within ten feet of the track. She testified that when the clutch was thrown out she expected he would stop his car.

The negligence of the plaintiff’s husband in not stopping before attempting to cross the track could not be imputed to her but she was not relieved from the duty of care. If she voluntarily went into a danger that she could have avoided or joined her husband in testing a danger of which she knew, her contributory negligence would prevent her recovery. Wachsmith v. Railroad, 233 Pa. 465. She was not rash or heedless but was vigilant in looking for danger and in observing what her husband did and she had reason to believe he would stop his car. Whether in the few seconds after she saw he was going on the crossing, more could have been required of her was not a question that could have been withdrawn from the jury.

The judgment is affirmed.