Razzis v. Philadelphia & Reading Railway Co.

Opinion by Mr. Justice Wailing, The facts of this case and general legal principles involved sufficiently appear in the former appeal (Razzis v. Phila. & Reading Ry. Co., 273 Pa. 550), where we held the case was one for a jury. The present appeal, however, alleges certain trial errors to which we will refer. Within five or ten minutes after the collision and before the injured boy had been removed from the place thereof, he made statements as to how the accident occurred, which were clearly a part of the res gestee (Smith v. Stoner, 243 Pa. 57), and properly admitted as such. It will be recalled that when the horses driven by the deceased had stepped upon the track in front of the approaching train, they halted and he apparently tried *98 to back off the track. In view of this, defendant asked an eyewitness whether the driver could have cleared the track by going forward. This was properly excluded as calling for the opinion of the witness, and, in any event, was not important as the driver, placed in sudden peril, was not responsible for an error of judgment. ■ Plaintiffs’ witness, Scully, was standing near the track and in a favorable position to hear warnings if given by those in charge of the approaching train, and his very positive evidence that the bell was not rung nor whistle blown, until the moment of accident, was sufficient to take that question to the jury notwithstanding evidence for the defense that proper warning was given: Cubitt v. New York Central R. R. Co., 278 Pa. 366; Hugo v. B. & O. R. R. Co., 238 Pa. 594; and see Thatcher v. Pierce, 281 Pa. 16; Duffy v. York Haven Water & Power Co., 233 Pa. 107; Thomas v. Penna. R. R. Co., 275 Pa. 579. Moreover, Scully was corroborated by the negative evidence of White and some other witnesses, called by defendant, to the effect that they heard no signals. In view of Scully’s testimony it could not be affirmed that this branch of plaintiffs’ casé was supported only by negative testimony, or that defendant’s evidence as to signals stood uncontradicted. The testimony of bne or two witnesses, called for the 'defense, tended to show the deceased did not keep a proper look-out as he drove upon the crossing, but they only glanced at him and it cannot be declared as a matter of law that their evidence was sufficient to overcome the presumption of due care on his part. The proof on the second trial disclosed no controlling difference from that of the first, hence the trial judge properly submitted the case to the jury (Kirk v. Showell, Fryer & Co., 279 Pa. 288), and did so in a charge entirely free from error. Other questions raised are sufficiently discussed in the former opinion. The judgment is affirmed.