Patterson v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. , 210 Pa. 47 ( 1904 )

Per Curiam,

These two cases grew out of the same accident and raise the same question.

The plaintiff was entitled to go to the jury on the presumption that the deceased did his duty to “ stop, look and listen ” before driving on the tracks. Whether that presumption was rebutted was for the jury unless the evidence to the contrary was clear, positive, credible, and either uncontradicted or so.indisputable in weight and amount as to justify the court in holding that a verdict against it* must be set aside as a matter of law. The testimony in this cáse falls short of that standard; Three witnesses testified to having seen the deceased as he approached the crossing, and that they did not see him stop, but none of them covered the entire approach. Even Wise, the most important witness of all, testified there was a “ bump ” (a dip) in the road where he lost sight of the deceased, and in answer to the question “ before they (the deceased) went on the track that day did they stop or did they not?” answered “ they was back there long enough to stop behind that bump ” and being asked to give his best judgment, said “ I would say they must have stopped for they was back there long enough to stop.” While there was testimony persuasive that they did not stop, it was not so positive or so complete as to justify the judge in saying as a matter of law that the presumption had been rebutted.

Judgment affirmed.