McWilliams v. Keim

15 A. 654, 1 Monag. 16, 1888 Pa. LEXIS 720

• Court: Supreme Court of Pennsylvania
• Decided: October 1, 1888
• Docket: No. 69
• Status: Published

Opinion

Sterrett, J.,

In any view that can be taken of the evidence in this case, it is clearly insufficient to warrant a judgment of non-suit. Instead of establishing the fact of contributory negligence, of which the judgment is predicated, the evidence tends rather to prove that plaintiff exercised all the care and precaution, in approaching the railroad crossing, that could be reasonably required of any one under the circumstances, and if it had been submitted to the jury, they doubtless would have so found; but, whether they would or not, the case was clearly for the jury and not for the court. Assuming the evidence to be true, it makes out a case of negligence, on the part of those in charge of the irregular train, in approaching an admittedly dangerous crossing at a high rate of speed, and without any warning whatever.

Judgment reversed and procedendo awarded. A. B. W.