Shaffer v. Pennsylvania Railroad , 258 Pa. 288 ( 1917 )

Opinion by

Mb. Justice Potteb,

One question only is raised by this appeal: Was the evidence of contributory negligence upon the part of the decedent so clear that the court should have directed a verdict in favor of the defendant? It appears from the testimony that Isaac Shaffer, the plaintiff’s husband, drove an automobile truck up to a public crossing of the defendant’s railway and stopped with the front of the truck about six feet distant from the rail. His seat was some seven feet from the front of the truck, so that the point at which he was sitting was about thirteen feet from the rail, or a little over fifteen feet from the middle of the track.. These distances were not accurate measurements, but were careful estimates. Mr. Shaffer’s .brother, who stood on the running-board of the machine beside him, testified that at that point he had a view up the track of about three hundred feet, and that he looked, but saw no train in sight. The automobile was then started ahead, but, before it cleared the track, it was struck by a locomotive running at high speed, and Isaac Shaffer was killed. The testimony showed that, in approaching the crossing from the south, as did Mr. Shaffer, the view up the track was obstructed by the station building, so that,* at a point fifteen feet from the center of the track, there was a view of the track, in the direction from which the engine came, for a distance of about three hundred and six feet; while, from any point in the highway less than fifteen feet from the center of the track, a view of oyer sixteen hundred feet could be had. When the automobile came to a stop, its front end was advanced six or seven feet within the fifteen-foot space, and presumably was as near to the rail as the driver of the car thought it prudent to go. Counsel for appellant do not contend that the automobile should have been driven any nearer to the track, but they earnestly argue that Mr. Shaffer had reached a point where by leaning forward in his seat, he could have very much extended his view of the track, and could have seen the oncoming engine. This contention is based upon close arithmetical calculation as to the precise position in which the car stood, and upon accurate measurements made after the accident. But the points were not marked upon the ground at the time, and it does not appear ¿hat Mr. Shaffer knew the exact position of his car with respect to the enlarging of his view up the track, and we do not feel that the trial judge could have held, as a matter of law, that Mr. Shaffer knew the precise distance at which the front of his car stood from the track, or that by leaning forward at that instant he could have had the longer view. The evidence shows that he came as near to the track, before stopping his car, as was reasonably safe. This, is not . questioned by counsel for appellant. According to the testimony of the brother, no engine was in sight from that point, and Mr. Shaffer started his automobile, which had less than six feet to move forward, before coming within the line of danger in case of an approaching train. As the automobile advanced, almost immediately the locomotive was discovered, bearing down upon it, and a witness testified that Shaffer then threw his brakes on and tried to stop. Whether he did this, intending to back off, or whether he stalled his engine by applying his brakes too suddenly to a slowly moving car, the result was that the automobile remained on the track, and was struck with terrific force by the locomotive. We feel that the circumstances attending this accident, and the conduct of Mr. Shaffer with reference to them, afforded plausible ground for a variety of inferences, so that the verdict of a jury was the only proper means of determining whether Mr. Shaffer exercised the degree of care which a reasonable and prudent man would have exercised under the circumstances. The conclusions to be drawn from the evidence are not free from doubt, and in such case the court should not decide the question as one of law. It may be that, when the driver stopped his automobile at a point where he had a view of but little more than three hundred feet up the track, he should have leaned forward, or gone forward, to get a more extended view, but we do not feel that, under the circumstances, the court would have been justified in pronouncing npon his conduct in that respect as matter of law. “When a driver has stopped at the usual stopping place, whether he should go forward in advance of his team to a better place to look, is a question to be determined by the circumstances of the particular case.” Calhoun v. Penna. R. R. Co., 223 Pa. 298, 300. In the same opinion there appears a citation from Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis R. R. Co., 158 Pa. 233, as follows: “Stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can be drawn from it, the court cannot draw the inference as a conclusion of law, but it must send the case to the jury.” This principle is applicable to the present case, and justifies the action of the court below in submitting to the jury the question of contributory negligence upon the part of the decedent.

The assignments of error are overruled, and the judgment is affirmed.