Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway

Citations

• 158 Pa. 233
• 27 A. 970
• 1893 Pa. LEXIS 1571

Syllabus

<p>Negligence — Railroads—Crossings—“ Stop, look and, listen.”</p> <p>The mere act of stopping before going upon a railroad track does not of itself show that the person injured stopped at a proper place, or that there was not another and better place where he should have stopped again, or that his duty of looking and listening was performed with proper care and attention; but stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury.</p> <p>Nonsuit — Court and jury — Evidence.</p> <p>In an action to recover damages for personal injuries, if the plaintiff has made out a case for himself by his own testimony he cannot be non-suited, although another of his own witnesses shows his negligence.</p> <p>When the plaintiff’s testimony is contradictory, so that on part of it he is entitled to go to the jury, and on the other part he is not, the ease must go to the jury, whose province it is to reconcile conflicting statements whether of the same or different witnesses, or to draw the line between them and say which shall prevail.</p> <p>Plaintiff testified that he stopped “ within about forty feet of the track and listened for the train; ” again that he leaned forward in the buggy, “ looked both ways and listened for the whistle; ” again he repeated that he stopped, looked both ways and listened, and added that he satisfied himself that there was no approaching train before he started, and that he “ used all the caution that any man could do.” On the other hand he testified that from a point about seventy feet from the track an approaching train could not be seen owing to a cut and embankment. Upon cross-examination he admitted that he could not see down the track from where he stopped. In explanation of his inconsistency he said that until within| seve