Link v. Phila. & Reading R. R.

Opinion by Mb. Justice McCollum, The defendant company’s principal contention is that there. was no evidence introduced on the trial which warranted an inference that there was negligence on its part which caused or contributed to the death of the plaintiff’s father. There was evidence, however, submitted by the plaintiff, to the effect that the train was late and running very fast and that the usual signals given on approaching the crossing were omitted. According to his evidence the whistle was not blown after the train left the cut a half mile from the crossing, until the moment of the collision. The engine bell was not rung and the electric bell by the roadside was • out of order and did not an [80] nounce the approach of the train. This evidence, if believed, was clearly sufficient to show that the company was remiss in the performance of its duty to the traveling public at the point where the accident occurred. It is true that this evidence was plainly contradicted in every essential particular by evidence submitted by the company in reference to the same matters, but the conflict in the testimony did not authorize a peremptory instruction by the court to find for the defendant. There was nothing in the evidence which warranted the court in declaring as a matter of law that there was contributory negligence on the part of the decedent. When in the vicinity of the crossing he stopped, looked and listened for the purpose of ascertaining whether a train was approaching. Before him were five tracks, the east- and west-bound tracks and three sidings. A freight train was then standing on the east-bound track and a gravel train on the siding south of and next to it. The gravel train was cut at the crossing so as to afford an open space of at least twenty-four feet for travelers on the high-way, to cross the tracks. The engines attached to these trains were near the crossing and blowing off steam. The cars interfered to some extent with the view of the west-bound track, and the discharge of steam by the engines affected somewhat the ability to hear the usual signals of an approaching train. Whether the deceased stopped at the best point to look for the approach of a west-bound train was a matter in dispute under the evidence submitted by the contending parties. It was therefore clearly a question for the jury. We cannot say that the learned court erred in its answer to the defendant’s fourth point. The point entirely ignored the condition at and in the immediate vicinity of the crossing to which reference has already been made. For this condition the defendant company was responsible and in view of it we think the answer to the point was unobjectionable. Nor do we discover any error in the ruling complained of in the 5th specification. There was, as we have already seen, evidence from which it might be fairly inferred that the bell at the crossing was out of order and failed to give notice of the approach of the train, and that before the occurrence in question it was noticed that it rung so lightly that a person within fifteen feet of it could not hear it. In connection with such evidence, it was [81] proper to show that a day or two after the accident the bell was repaired by the defendant company. The specifications of error are overruled. Judgment affirmed. Opinion by Me. Justice McCollum, Jan. 7, 1895: This ease was tried in the court below and argued here with No. 132, Jan. Term, 1894, just decided. The material questions in that case were the same as in this, and for the reasons stated in the opinion filed in that the judgment in this is affirmed.