Breunniger v. Pennsylvania Railroad

Opinion by

William W. Porter, J.,

In order to sustain the nonsuit entered in this case, we must hold that it was inherently impossible for the accident to have happened as detailed by the plaintiff’s witness.

The driver stopped with his team of mules fifty feet from the four tracks of the defendant company. He there looked and listened. The point at which he stopped was a proper point. He waited until a freight train passed going west on the third track. Pie then drove forward at a walk, looking east and west until his mules were about stepping on track No. 1. They crossed track No. 1 and had their feet upon track No. 2, when the driver was warned by a person on the sidewalk of a train approaching from the west. He attempted to back his mules. He got them off the second track and upon the first track. There they were struck.

There was no evidence of the speed of the train. It came into view at a point about 418 feet west of the crossing. The driver says he looked in that direction just before his mules stepped upon track No. 1, and saw no train. It may have been that the train came into view after he had gotten upon the first track. If this were so, the driver, when warned by the stranger, may have been unable to back the mules in the time it took the train to reach the crossing, after coming into view. In other words, it is possible that the train may not have been in view of the driver when he attempted to make the crossing, and yet that he may have been struck just as he has described. If this be a possibility it was the duty of the court to submit the case to the jury, even though the witness’s story may be improbable. To quote the language of Mr. Justice Fell, in Callahan v. Traction Co., 184 Pa. 425: “ That the accident happened in the manner in which the plaintiff described it is highly improbable, but it is possible, and if the jury believed the plaintiff’s testimony, there was ample ground for the verdict.” Where the existence of contributory negligence depends upon inferences to be drawn from the evidence, the question must go to the jury for decision: Davidson v. R. R. Co., 179 Pa. 227; Davidson v. Traction Co., 4 Pa. Superior Ct. 86 ; Safe Deposit Co. v. Ry. Co., 6 Pa. Superior Ct. 204.

If it be said that the driver was negligent in attempting to back the mules, he replies that he did not know on which track the train was coming. As a matter of law, the acts of one in imminent peril are not measured by the same standard of discretion as that applied to those of one who has time and opportunity for reflection. This is not the case of a man driving upon a railroad track and being instantly struck. There the circumstances themselves demonstrate the inherent impossibility of the exercise of due care.

As this case must go to a jury, we refrain from further discussion of its merits.

Judgment is reversed, and a venire facias de novo is awarded.