DocketNumber: Appeal, No. 99
Citation Numbers: 58 Pa. Super. 246
Judges: Head, Henderson, Kephart, Orlady, Porter, Rice, Trexler
Filed Date: 7/15/1914
Status: Precedential
Modified Date: 2/18/2022
Opinion by
It cannot be urged the plaintiff’s testimony disclosed any flat violation by him of the imperative rule of law which requires a traveler to stop, look and listen before attempting to enter upon a grade crossing over the tracks of a steam railroad. There is evidence, practically undisputed, the plaintiff did stop, look and listen, and still further that the point at which he stopped was the place usually selected by travelers in the discharge of the duty imposed by the rule. Ordinarily then that rule of law would interpose no barrier to the plaintiff’s recovery. But it is urged that on the day of this accident the view of the west-bound track, usually to be had from that point, was in part obstructed by the presence of some freight cars standing on a siding. The real question in the case therefore is, was the act of the plaintiff in stopping at that point a discharge of his legal duty to observe due care under the circumstances? Many cases have held that such question, except perhaps in extremely rare instances, is a mixed one' of law and fact to be resolved by the jury.
In cases of this character the plaintiff has the burden of proving by evidence that the injury complained of resulted from some negligent act or omission on the part of the defendant. There is no burden on him to prove the negative proposition that he himself committed no act of negligence. It is quite sufficient, both on reason and authority, if in discharging his own burden his proof discloses no act of contributing negligence on his own part. The answer of the trial judge to the plaintiff’s third point was entirely correct, and the defendant has no ground of complaint by reason of it. The second assignment is dismissed.
We can discover nothing in the answer to the first point to warrant the conclusion that the trial judge, by the form of his answer, deprived the defendant of
Under the late decisions the portion of the charge which is the subject of the sixth assignment cannot be said to be ah accurate statement of the law. It was pointed out by Mr. Justice Moschzisker in McGonnell v. Pittsburg Railways Co., 234 Pa. 396, that in personal injury cases damages are assessed as of the date of the trial and not of the injury. Compensation for delay therefore is no necessary incident to such recovery. If the circumstances be such that the jury may justly attribute the delay to the defendant, then they are at liberty to award additional damages by way of compensation for that delay; such damages, however, in no case to exceed a sum equivalent to interest at six per cent on the sum awarded because of the injury complained of. Whilst we must agree that the charge was technically erroneous in this respect, it does not follow such error can be corrected only by another trial. In the present case the plaintiff has filed a stipulation in this court agreeing to remit the sum of $42.67, which will effectually relieve the defendant from any possible injury it could have suffered by the instruction of the learned judge complained of.
We accordingly modify the judgment by reducing it to the smn of $667, and as thus modified it is affirmed.