Luken v. Pennsylvania Railroad , 267 Pa. 315 ( 1920 )

Opinion by

Mr. Chief Justice Brown,

On the afternoon of June 6, 1917, at about' four o’clock, an automobile belonging to Harry J. Luken, and in which he was riding, was struck by a through express train of the defendant company on a road crossing at Monocacy station, in Berks County. At the time of the collision, as a result of which Luken died several hours later, one of his employees was driving the automobile, the deceased sitting beside him to the right, on the front seat. As they approached the station from the north they passed by a “Stop, Look and Listen” sign erected along the public road about seventy-six feet from the railroad tracks, and stopped at a point between them and the signboard, from which there was a view of several hundred feet in the direction from which the train was coming. The driver of the automobile testified that, after looking at that point and seeing no train in sight, he started, and immediately after he had passed the railroad, company’s station, which was to his right, the collision occurred. In this action, brought by the next friend and guardian of the minor son of the deceased, the negligence of the defendant company and the contributory negligence of the deceased, to whom t'he negligence of his employee was admittedly imputable, were submitted to the jury, whose verdict was in favor of the plaintiff. On the present appeal by the defendant from the judgment entered on it, the ground upon which learned counsel for appellant asks that it be reversed is contributory negligence. It seems that the deceased had an adopted son, and a further contention is that he ought to have been named as one of the plaintiffs. We need not pass upon this, in view of the judgment we are compelled to enter.

The driver of the automobile was called as a witness by the plaintiff, and from his own lips there came a confession of his carelessness in driving up to the railroad tracks, which clearly bars the right of the minor child of his deceased employer to recover for the father’s death. Though the automobile stopped, according to the testimony, at a point on the road where people usually stopped, looked and listened before proceeding to cross over the railroad tracks, the duty rested upon the driver to continue, until he reached the railroad, to look for an approaching train and to observe the precaution which the danger of the situation required. His whole duty was not confined to stopping, looking and listening. After doing so, when he proceeded towards the crossing, it was his duty to keep a vigilant and continuing outlook: Cookson v. Pittsburgh & Western Railway Company, 179 Pa. 184; Muckinhaupt v. Erie R. R., 196 Pa. 213; Provost v. Director General of Railroads, 265 Pa. 589.

Immediately after the automobile started from the point where it had stopped for the purpose of enabling the driver to determine whether it was safe to proceed, the view of the railroad to the right — the direction from which the train was coming — became restricted by the station — a frame structure — and all view to the right was cut off when the automobile was alongside of the building; but, notwithstanding this, the driver went on, though when he was on a line with the station he could have had a clear view of the railroad between the station and the first rail of more than four hundred feet to the west, and at a single glance he would have seen the approaching train, which he could have avoided by stopping the automobile. He admitted that, after he started from the point where he had stopped, looked and listened, he did absolutely nothing more as a precaution against the danger which he knew might be, and actually was, ahead of him, for this is his testimony: “Q. You regarded yourself as having done your whole duty by stopping between the danger board and the station — you regarded yourself as having done your whole duty in doing that? A. Yes, sir. Q. You didn’t think it was necessary to take any further precaution? A. No, sir.” In view of this admission, the only possible conclusion is that the automobile was driven up to the railroad track in disregard of the care and vigilance required of the driver; but, even without the admission of his negligence, he could not be heard to say that he had exercised proper care, for if he had looked, where he ought to have looked, when he was on a line with the station, he could and would have seen the coming train.

The defendant’s point asking that a verdict be directed in its favor should have been affirmed: Corcoran v. Pennsylvania Railroad Company, 203 Pa. 380; and the seventh assignment of error is sustained, as is the eighth, complaining of the refusal of the court below to enter judgment for the defendant non obstante veredicto.

The judgment for the plaintiff is reversed, and judgment for the defendant is here entered non obstante veredicto.