DISTRICT COURT, W.D. PENNSYLVANIA
May 3, 1946
BALTIMORE & O.R. CO.
The opinion of the court was delivered by: GIBSON
GIBSON, District Judge.
Upon trial the court, on motion of counsel for the defendant, refused to submit the case to the jury. As the testimony was then viewed, plaintiff's decedent failed to observe proper precautions as to looking before engaging the crossing, or had knowingly engaged in a race with the train for the crossing, as he had a view of over 700 feet of the approach of the train.
An examination of the testimony has convinced the court that it was in error and that the case should have been submitted to the jury. The crossing was not perpendicular to the track and the passage over it had been almost completed when the collision occurred. The evidence was that the deceased had stopped his car and looked before attempting to cross, that the train was traveling at a high speed, and that the warning whistle had not been blown at the usual place and not until the train was a trifle short of 200 feet from the crossing. Under these circumstances it could not be said that the deceased had either failed to look or had knowingly engaged the crossing in the face of the approaching train.
The motion for a new trial will be granted.
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