Masso v. Pittsburgh & Lake Erie Railroad

89 A. 802, 243 Pa. 1, 1914 Pa. LEXIS 566

• Court: Supreme Court of Pennsylvania
• Decided: January 5, 1914
• Docket: Appeal, No. 199
• Status: Published

Opinion

Opinion by

Mr. Justice Mestbezat,

< There are thirteen assignments of error in this case, but the controlling question and the one to which the appellant devotes the principal part of his argument is whether under all the evidence the court should have withdrawn the case from the jury by directing a verdict for the defendant.

■ If we were sitting as jurors, we would have some difficulty in coming to the conclusion that the plaintiff performed the duty required of him to stop, look and listen at a proper place before he attempted to make the crossing at which he was injured. His testimony is, to say the least, confusing. Whether he stopped between the tracks of the Baltimore and Ohio Railroad Company and those of the defendant company or stopped east of the tracks of the Baltimore and Ohio Railroad Company is difficult to determine from his evidence. Part of it would warrant the conclusion that he stopped between the tracks of the two companies, and from another part of it the jury would have been warranted in finding that he stopped east of the Baltimore and Ohio tracks. If the distance between the tracks of the two companies was thirty or thirty five feet and he could see an approaching train for several hundred yards if he had stopped between those tracks, the evidence would indicate that was the proper place to stop. The court directed the attention of the jury to this question in the following language: “It then becomes an important question in this case as to where this buggy in which these men were riding was stopped. Was it stopped at the last safe place to-stop before committing themselves to the act of crossing over the track? Was it at such a place as a reasonably prudent person would have stopped to let some one get out of the buggy, go ahead and look to see whether a train was approaching and then come back and get into the buggy, or was it stopped up above the B. & O. tracks or some distance away from the tracks of the P. & L. E. Company?......You will pass on and conclude as to the place where he stopped and whether or not it was such a place as a reasonably prudent person would have stopped for the purpose of looking and listening for an approaching train or getting out and coming over to the track to look and listen.” We must, therefore, assume that the jury found that the plaintiff did perform his duty in this respect and stopped at the proper place to look and listen for an approaching train. We think the confusion in Ms testimony could have been avoided had the witness been permitted to show where he alighted by indicating the point on the rough sketch of the crossing offered by appellee or on the defendant’s map which was used on the former trial. The plaintiff is an Italian and understands English very imperfectly. With the sketch or map before him he no doubt could have pointed to the exact position where he alighted from the buggy and went forward to look for an approaching train. The rough sketch or drawing was presented to him for the purpose but the defendant’s counsel objected to its use by the witness and the court sustained the objection. We must deal with the testimony as we have it, and we are not convinced the learned court was in error in refusing to declare as matter of law that the defendant company was free from negligence or that the plaintiff was guilty of contributory negligence. The learned judge heard the case, was no doubt familiar with the place where the accident occurred and after full consideration refused to sustain the appellant’s contention in this respect. We are not satisfied that we should interfere with his conclusion.

The exclusion of the question put to Mr. Shaner did the appellant no harm. It was immediately followed by another question the answer to which was broad enough to cover the preceding question.

We see no merit in the third assignment which alleges error in the court’s answer to the plaintiff’s second point which requested the court to charge as to the weight of certain alleged negative testimony, as to the headlight on the locomotive, and as to the warning of its approach to the crossing. This point refers to the testimony of the plaintiff and Mr. Davey, both of whom testified that they had reason for listening for signals by the approaching train and that there was no headlight on the engine and that no warning was given. The plaintiff’s reason was that he intended to cross the track and had stopped, looked and listened for a train; and Davey testified that he was driving a skittish colt and knowing the crossing to be dangerous he desired to know whether a train was approaching or not before he attempted to pass the crossing. This, with the negative testimony in the case, was sufficient to go to the jury on the question of whether the engine had a headlight and gave a signal of its approach to the crossing. Whether the defendant was negligent in this respect was for the jury.

It may be suggested that the appellee endangered his case by submitting numerous points for charge to the learned trial judge. In its general charge, the court had covered all the questions raised by these points by instructions favorable to the appellee, and there was no necessity for complicating the case by requiring the court to rule on the several points. About half of the assignments of error are to the answers of the learned judge to the appellee’s points and had he inadvertently erred in answering any of them by reason of the hurry in the trial it might have been fatal to the appellee’s case. The appellee, therefore, may consider himself fortunate in not having suffered by reason of his having interjected into the case requests for instructions which were wholly unnecessary.

The judgment is affirmed.