Mine v. Western Maryland Railway Co.

Citations

• 262 Pa. 33

Syllabus

<p>Negligence — Railroads—Grade crossing — Collision—Automobile —Death of passenger — Passenger husband of owner — Passenger’s duty to warn driver of danger — Evidence—Res gestw — Charge—• Contributory negligence — Case for jury.</p> <p>1. Where a passenger in an automobile having opportunity fails to warn the driver of a known danger, and to protest against incurring it, he is guilty of negligence.</p> <p>2. A person riding in an automobile is not liable for its management because it is owned by his wife, if at the time it is in the possession and control of another as bailee.</p> <p>3. The negligence of the bailee of an automobile is not imputable to the owner thereof who is not present.</p> <p>4. While the fixed duty to stop, look and listen before going upon ,a railroad track applies to the driver under all circumstances, yet the duty of calling upon him to do so devolves upon the passenger only where he has knowledge of the crossing, either acquired at the time or previously.</p> <p>5. The testimony of four surviving occupants of an automobile which was struck by one of the defendant’s trains at a railroad grade crossing, that neither whistle nor bell was sounded, is more than negative testimony and although contradicted renders the question of defendant’s negligence one of fact for the jury.</p> <p>6. The duty of a driver of an automobile to stop before crossing railroad tracks is unbending, and darkness is no excuse for failure to perform it.</p> <p>7. In an action against a railroad company to recover for the death of plaintiff’s husband occasioned by being struck by one of defendant’s trains while a passenger in an automobile, where it appeared that deceased was in ill health and that the 'automobile, which was the property of the plaintiff, had been loaned to and was being driven by a friend of the family; that decedent was seated in the front seat next to the driver; that the driver did not stop before making the crossing; that deceased was the first one