Sullivan v. New York, Lake Erie & Western R. R. , 1896 Pa. LEXIS 1258 ( 1896 )

Opinion by

Mr. Justice Pell,

The question in this case is whether a compulsory nonsuit was properly entered. The plaintiff’s husband was killed by a train at a grade crossing on the defendant’s road. He was riding in an open wagon on a turnpike road which was nearly level with the railroad tracks, and crossed them diagonally. Within three hundred feet of the crossing an approaching train could have been seen at the distance of a quarter of a mile, and within fifty feet it could have been seen a mile from the crossing. The decedent was familiar with the locality and the crossing, the country was open and comparatively level, it was a clear, bright moonlight night and the train was running rapidly and made the usual noise. There was no affirmative evidence of any act or of any omission of duty which might have misled one about to cross the tracks or have tended to relax his vigilance.

No one who witnessed the accident was called to testify. The plaintiff’s case rested upon the bare presumption thather husband had stopped, looked and listened before attempting to cross the tracks. His duty in this regard was fixed by an unbending rule of law. The presumption that he did it is based upon the fact that the natural instincts of men lead them to avoid injury. It prevails in the absence of direct testimony upon the subject, but it may be rebutted by the proof of facts and circumstances as well as by direct evidence. It is demonstrated by the testimony that, if he obeyed the legal injunction, he saw and heard the approaching train; and the only deduction possible is that he did not look and listen, or that seeing and hearing he went on regardless of the danger. The case comes directly within the rule stated in Myers v. B. & O. R. R. Co., 1-50 Pa. 386: “ That one who is struck by a moving train which was plainly visible fronuthe point he occupied when it became his duty to stop, look and listen, must be conclusively presumed to have disregarded that rule of law and common prudence, and to have gone negligently into an obvious danger.”

It remains to be considered whether the facts upon which the nonsuit was based were developed by an improper cross-examination of the plaintiff’s witnesses. The order of the introduction of testimony and of the examination of witnesses must be left largely to the discretion of the trial judge, and it is often difficult in practice to determine the exact limits of a proper cross-examination. It should be confined to the subject of the examination in chief and to the credit of the witness, and not used as a means to introduce a defénse to the action. When under the guise of cross-examination the defendant has improperly brought to the attention of the jury facts upon which he relies to defend the action, they should be considered as evidence in chief for him, and they cannot be made the basis of a compulsory nonsuit: Hughes v. Coal Co., 104 Pa. 213; Longenecker v. R. R. Co., 105 Pa. 330.

The two witnesses whose cross-examination is the subject of exception had been asked in their examination in chief to describe the crossing, whether at right angles or diagonal, and the position of the turnpike in relation to the railroad; to locate the whistling post, to state whether the night was dark or moonlight, whether the turnpike was rough or smooth, and the amount of travel on it; and whether they had heard the whistle or bell as the train passed. One of the witnesses, who had stated without objection on cross-examination that the wagon road for the distance of three hundred feet from the crossing was nearly as high as the railroad, was asked whether a person riding in a wagon had a view of the railroad before reaching the crossing. The other -witness, who had gone further in his examination in chief and stated that the wagon made a noise and that there were houses near the line of the railroad, was asked whether if the deceased had stopped within fifty or one hundred feet of the crossing he could not have seen down the railroad half a mile. These questions were directly in the line of the examination in chief, the purpose of which had been to show the situation of the crossing and its dangers. The scene had been partly developed with the intention of showing that the situation was dangerous, and it was competent for the defendant in cross-examination to show that there were no dangers which could not have been avoided by the exercise of reasonable care and prudence. All the facts elicited by these questions were afterward proved by other witnesses called by the plaintiff in their examination in chief.

The assignments of error are overruled and the judgment is affirmed.