Darbrinsky v. Pennsylvania Co. , 247 Pa. 177 ( 1915 )

Opinion by

Mr. Justice Elkin,

This action was brought by the widow in her own right and in behalf of her children for damages resulting from the death of her husband who was killed at a railroad crossing. The defense relied on at the trial and here is that there can be no recovery because of the contributory negligence of the deceased husband. The accident occurred at a grade crossing and the question for decision here is whether the husband, driver of the horse and wagon, was so cleanly guilty of contributory negligence as to warrant the court in thus declaring as a matter of law. The learned trial judge upon motion granted a compulsory nonsuit, and from the refusal of the motion to take it off, plaintiffs have appealed. The learned trial judge sums up the important testimony as follows :

“The testimony of the son, who was in the wagon with his father at the time of the accident, is to the effect that as his father drove down the road, he looked down the track, and then looked up and just then was killed. That is the testimony of the boy who was in the wagon at the time and who survived this accident. This shows that as he looked up the horse was struck; he must have been then quite close to the track. In fact, so close that a part of the horse was on the track or within the line that the train would cover in going over the place. Now, the evidence also shows that the deceased looked up the track westward at a point estimated at about 125 to 150 feet south of the track. At this place the track could not be seen but an approaching train could be seen. The testimony of Mr. Edwards and Mr. Hulette and Mr. Mc-Creary is to the effect that at a point 25 feet south of the south rail of the east bound track, the track could be seen for a distance of one-half mile westward. Taking that testimony into consideration, also the testimony of the son to the effect that the deceased was struck at about the same instant that he looked up the track, to my mind clearly indicates that the deceased did not stop, look and listen at the last safe place.”

In addition it may be said that the deceased had a clear view of the track for one-half mile in the direction from whence the train came at a point about 25 feet from the crossing and that this view remained unobstructed for the entire distance. If the driver had stopped his horse at any point within the 25 feet where he had a clear view of the approaching train the accident would not have happened. Why he did not do so no one can say, but it is quite evident that he did not see the approaching train which he could have seen by the exercise of reasonable care, or he would not have taken the risk of such imminent danger. The facts show that he drove his horse up to the track and right in front of the rapidly moving train and as a result sustained the injuries which caused his death. These facts bring the case at bar within the rule to which this court has adhered in a long line of cases: Urias v. Railroad Co., 152 Pa. 326; Blotz v. Railroad Co., 212 Pa. 154; McKahan v. Railroad Co., 223 Pa. 1. It was held in Dehoff v. Railway Co., 229 Pa., 192, that it was the duty of a driver approaching a railroad crossing to stop where he can see, and that stopping at a point 100 feet from the track where his view is obstructed by an embankment and a building, when at a point 30 feet from the track there is a clear view of 500 feet and 10 feet from it a clear view of 1,000 feet, is not a compliance with the rule. The facts of that case in nearly every essential particular are identical with the one at bar. No useful purpose would be served by a reference to the numerous cases in which this question has been considered. We cannot regard this case in any other light than that of the driver of a team, who has a clear view of the track in the direction from which the train was approaching for a distance of one-half mile, thoughtlessly and carelessly driving right in front of the engine, with the result that the head and shoulders of the horse were struck just as it was about to step upon the first rail of the track. It is true that the clear space in which there was a view of the track for a half mile was limited to a distance of 25 or 30 feet before reaching the crossing, but it is not disputed that this space was sufficient to enable the driver to see the approaching train, if he had looked, and to have avoided the accident by stopping, if he had done his duty as the law requires. It must not be overlooked that the head of the horse was struck at the very moment he was about to step over the first rail of the track. Certainly under such circumstances the driver could have avoided the accident if he had stopped his horse at any point within the 25 feet in which he had a clear view of the track for one-half mile. Upon a careful review of the whole record we cannot say that the learned court below committed reversible error in refusing to take off the nonsuit.

Judgment affirmed.