Terry v. Delaware, Lackawanna & Western Railroad

Citations

• 60 Pa. Super. 451
• 1915 Pa. Super. LEXIS 218

Syllabus

<p>Negligence — Railroads—Statement of claim — Amendment.</p> <p>A statement of claim in a negligence case against a railroad may be amended so as to limit and define the precise location of the accident within the space described in the statement, if it does not impose any new or different duty'on the defendant other than that originally averred.</p> <p>Negligence — Railroads—Death while crossing railroad — Permissive crossing — Presumption—Evidence—Case for jury.</p> <p>Where S person is found dead on a permissive highway which crosses a railroad at grade, the presumption is that he was rightfully on the highway, and that he was killed while crossing.</p> <p>At a permissive crossing a railroad company owes to those using it the duty of reasonable care; and whether or not such reasonable care was exercised, is ordinarily a question for the jury under all the evidence.</p> <p>Where a person is found dead on a permissive crossing over a railroad, the presumption is, in the absence of evidence, that he stopped, looked and listened before crossing; but the railroad company is likewise entitled to the presumption that through its agents it did its full duty in approaching the crossing.</p> <p>Where a person testifies that he knew of a particular train passing a particular point at a certain time, that he had observed the train for three months and was looking for it at thé time an acccident occurred, that there was no headlight, and that he listened for a whistle to be blown or a bell rung, and that he heard neither, such evidence is sufficient to submit to a jury to rebut the presumption that the company had done all that was required of it in approaching a grade crossing, although all of the trainmen, who did not know of the accident until hours afterwards, testified to the contrary.</p> <p>Where a person is found dead at a permissive crossing and there is no dispute that he was struck by a train, but no one saw the accident which happened in the nighttime, the deceas