DocketNumber: Appeal, No. 92
Judges: Brown, Fell, Mestrezat, Moschzisker, Potter, Stewart
Filed Date: 1/2/1912
Status: Precedential
Modified Date: 10/19/2024
Opinion by
The owner and operator of an automobile was engaged to take a lunatic to an asylum. The plaintiff and another attendant, who were in charge of the lunatic, were seated with him on the back seat. They entered the borough of Butler on a street that crossed the defendant’s road at grade. The buildings on either side of the street shut off any view of the railroad until a point eighteen or twenty feet from the tracks was reached, from which there was an unobstructed view for several hundred feet. The driver, when twenty-five or thirty feet from the track, slackened the speed of the automobile almost to a full stop and then suddenly started it forward and ran onto1 the crossing. The automobile was struck by a shifting engine of the approach of which no notice was given. The lunatic became excited as the speed of the automobile was slackened, and the plaintiff’s attention was partly directed to him, but he looked and listened for trains. He testified that he saw the driver of the automobile slacken its speed until it was almost at a standstill and he thought he was going to bring it to a full stop. Both the plaintiff and the driver were familiar with the crossing.
The negligence of the driver was manifest, but his negligence cannot be imputed to the plaintiff. The plaintiff was not, however, relieved from the duty of care. If he voluntarily went into a danger that he could have avoided, or joined the driver in testing a danger, his own contributory negligence would prevent a recovery. This
The law governing the case was very clearly and accurately defined by the learned trial judge in his opinion discharging the rule to take off the nonsuit, but we are of opinion that he erred in its application to the facts developed at the trial, and that the question of contributory negligence was for the jury.
The judgment is reversed with a procedendo.