John E. Evans, Jr., Evans, Ivory & Evans, William W. Matson, Pittsburgh, for appellant.
John R. Bredin, Dalzell, McFall, Pringle & Bredin, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 18]
This action in trespass for damages for personal injuries arose out of a collision at a grade crossing between an automobile operated by plaintiff and a train of the defendant. After verdict for plaintiff, the court below entered judgment n. o. v. for defendant from which plaintiff has appealed to this Court. The only question before us is whether the court below was correct in holding that plaintiff was contributorily negligent as a matter of law.
[ 169 Pa. Super. Page 19]
Appellant's version of the accident is controlling, and the evidence must be considered in the light most favorable to him.
Appellant, having repaired an automobile in the garage of which he was proprietor, was returning it to its owner about 7 p. m. on May 21, 1946. At that time it was daylight and the weather conditions were clear and dry. Appellant was driving the automobile in a westerly direction along Huff Avenue in South Greensburg. Huff Avenue is 26.2 feet wide and is crossed at grade by a series of seven sets of tracks of defendant, running in a northerly and southerly direction. At the crossing the tracks first approached were siding tracks; beyond were a series which included the main tracks of defendant. Flashing signals were located on each side of the main tracks, but these signals were activated only by trains on the two main tracks. As appellant approached the easterly siding track his automobile was near the center of Huff Avenue, and the left side thereof was 12 feet north of a structure (Porceliar Building) several stories in height located at the sidewalk on the south side of Huff Avenue. This building restricted appellant's view to his left, that is, to the south, and according to appellant's testimony, the westerly side of the building was only 4 feet east of the first rail of the easternmost siding.
Appellant stopped east of the crossing when the front bumper of the automobile was 4 feet from the first track, which placed him, in the driver's seat, as he said, 11 feet from the first rail. At the time he stopped, a train was moving south over one of the mainline tracks but appellant testified the signal lights were not working. He waited for 30 to 60 seconds for the train to clear Huff Avenue. After looking, as he said, in both directions appellant started his automobile forward in low gear; it was then 4 feet from the the nearer rail of the first track. When the bumper was
[ 169 Pa. Super. Page 20]
on the first rail a train of coal hopper cars 'shot out' from behind the building on his left traveling north across Huff Avenue, and struck the front of the automobile and carried it a distance of 60 feet. The overhang of the hopper cars extended 2 feet 4 inches beyond the rails, leaving only about 1 foot and 8 inches between the point where ...