Carbaugh v. Philadelphia & Reading Railway Co.

104 A. 860, 262 Pa. 25, 1918 Pa. LEXIS 579

• Court: Supreme Court of Pennsylvania
• Decided: July 17, 1918
• Docket: Appeal, No. 68
• Status: Published

Opinion

Opinion by

Mr. Justice Frazer,

This suit arose out of the accident referred to and described in the opinion in Wingert v. Philadelphia & Reading Railway Company, herewith filed. Plaintiff is the husband of Mrs. Carbaugh, one of the victims of the accident, who was riding in the automobile driven by Wingert, the plaintiff in the case above mentioned. She occupied the rear seat of the car, with two other women and a child. Defendant contends deceased failed in her duty to look and listen for an approaching train, and thereby joined with the driver in testing a danger certainly apparent to her had she exercised due care. The verdict in the action by the driver of the automobile against this defendant, which was tried with the present suit, establishes the fact that he stopped, looked and listened and that no train at the time was within sight or hearing; hence, there was no manifest danger to test. Assuming, however, deceased saw or was bound to see the approaching train at the moment it rounded the curve, the driver also saw it, and there was neither occasion nor necessity for interference by her with the operation of the car, and to have done so might only have served to increase the danger: Vocca v. R. R., 259 Pa. 42.

The judgment is affirmed.