Lipik v. D., L. & W. R. R. Co. ( 1938 )

Appellants claim damages for the death of their son who was killed on appellee's railroad. Clearview Street is divided into east and west portions by a fill on which the tracks of the railroad are laid. There is an underpass a block distant. The evidence indicated that some people use the fill to walk across the tracks. The decedent was proceeding up Clearview Street where he met a witness with whom he had some conversation. They separated and the witness last saw the deceased when they were about one hundred feet apart. It was approximately 10:30 at night. The witness in crossing the fill observed an engine running backward toward him about one hundred feet away and got across in safety. Decedent was discovered a few minutes later, some distance farther down the track, his body lying between the rails. The engine had a light in the rear and lights in front, visible to the witness at a distance of one hundred feet. At this point the view of the tracks is unobstructed for from 500 to 1,000 feet in either direction. It was found that the decedent could have avoided the accident by crossing at the underpass a block away. Defendant having provided a safe passageway, it is incumbent on those who desire to cross the tracks to use it. They must use due care under the circumstances. While the allegations here were that no whistle was sounded or bell rung at the permissive crossing, the noise that comes from a moving engine, as well as the lights which show upon the tracks, cannot be overlooked in determining the question of negligence and contributory negligence. The court below entered a compulsory nonsuit, citing Zotter v. LehighValley Railroad Company, 280 Pa. 14; Grimes v. P. R. R. Co.,289 Pa. 320; Ray v. Lehigh Valley R. R. Co., 321 Pa. 538, andHazlett v. Director General, 274 Pa. 433.

Judgment affirmed.