Bernstein v. Pennsylvania Railroad

Citations

• 252 Pa. 581
• 97 A. 933
• 1916 Pa. LEXIS 664

Syllabus

<p>Negligence — Railroads—Crossings—Collision — Presumption in case of death — Cpntributory negligence — Judgment for defendant n. o. v.</p> <p>1. The doctrine that a person losing his life must he presumed to have exercised due care, has no application where the evidence shows affirmatively all the circumstances of the accident. There can he no presumption as against facts which are proven.</p> <p>2. Where in an action against a railroad company to recover damages for the death of plaintiff’s husband, who was killed by a locomotive while driving across defendant’s tracks in a covered wagon with side curtains down, it appeared that after passing the house line, deceased had a clear view up the tracks, of six hundred feet, and was struck while crossing the first rail of the far track, by the engine of a freight train moving at a rate of ten or twelve miles an hour, he either must have seen or should have seen the approaching train, and was guilty of contributory negligence in proceeding,' and judgment will he entered for the defendant n. o. v. notwithstanding the testimony of a witness who was in the wagon with deceased at the time, to the effect that they had stopped several feet on the near side of the first track, looked out around the curtain and saw no train approaching, and that they did not see it until it was on top of them and five or six feet away.</p> <p>3. In such case where the engineer and the conductor, who were both in the engine at the time, testified that the train was going at a rate of ten or twelve miles an hour, the estimates of other witnesses amounted to no more than conjecture, and will he given no effect, where they are not inconsistent with the conclusion that the wagon was driven upon the track when the train was so close at hand as to render the collision inevitable.</p>