Zenzil v. Delaware, Lackawanna & Western Railroad

Citations

• 257 Pa. 473
• 101 A. 809
• 1917 Pa. LEXIS 761

Syllabus

<p>Negligence — Railroads—Children—Crossings—Warning of approach — Contributory negligence — Nonsuit.</p> <p>1. In those eases where it has been held that it is within the province of the jury to pass upon conflicting statements in the plaintiff’s own testimony, the conflicting statements were on the question of contributory negligence where the burden of proof is on the defendant. If such conflicting testimony refers to a subject as to which the burden of proof is upon the plaintiff, the court should not submit evidence to the jury which will merely enable them to guess at a fact in favor of a party who is bound to prove it.</p> <p>2. Where in an action against’a railroad company for injuries to a child upon defendant’s tracks, the accident is alleged to have occurred at a permissive crossing, the burden of proof is upon plaintiff to establish the fact that the accident happened at such crossing, and if plaintiff’s own testimony on that question is so contradictory and conflicting as to present to the jury no basis for a finding, except a mere guess, a nonsuit is properly entered.</p> <p>3. The object of signals is to give notice that a train is about to occupy the track, but when the engine has passed and the cars are following one after the other, no further warning is necessary as to a person beside the train, and if such person walks into the train in broad daylight he cannot successfully contend that there was negligence in failing to warn hina.-</p> <p>4. Where the child in such case was nine years old, it seems that the question of contributory negligence would be for the jury.</p>