Appeals, Nos. 146 and 147, March T., 1951, from judgments of Court of Common Pleas of Allegheny County, July T., 1948, No. 3029, in case of Catherine Cowher Baker, Admrx., Estate of James Terry Baker, deceased, etc. v. Pennsylvania Railroad Company. Judgments reversed.
E. V. Buckley, with him Mercer and Buckley, for appellant.
John R. Bredin, with him Dalzell, McFall, Pringle and Bredin, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff as administratrix of her deceased husband's estate brought suit under the Wrongful Death and Survival Acts to recover damages for his death in a grade crossing accident allegedly due to negligence of the defendant railroad company. The jury returned verdicts for the plaintiff, the amounts whereof are not questioned. The defendant filed motions for judgments n.o.v. on the ground that the plaintiff's decedent was guilty of contributory negligence as
a matter of law. The court en banc sustained the motions and, accordingly, entered the judgments for the defendant from which the plaintiff took these appeals.
It is conceded here, as it was below, that the evidence was sufficient to carry the case to the jury on the question of the defendant's negligence. The sole inquiry is whether the plaintiff's decedent was guilty of contributory negligence as a matter of law. In answering that question, we necessarily take the evidence and all reasonable inferences therefrom most favorable to the plaintiff. So viewed, the following are the material facts.
As the plaintiff's husband was driving a bakery delivery truck over the River Road grade crossing of the defendant company's four track railroad in the village of Haysville, eleven miles west of Pittsburgh, he was struck on the fourth track over by a passenger train travelling westward at a speed of 65 miles per hours and was killed instantly. The accident occurred at 6:15 P.M. on December 20, 1947. It was dark at the time. The weather was "fairly clear"; there was some smoke and mist in the air. The railroad, at the place of the accident, runs in a generally east-west direction and more or less parallel to the Ohio River which is approximately 200 feet to the south of the railroad. River Road extends from the river in a northerly direction across the railroad at right angles and then across the Ohio River Boulevard, a four-lane "very much travelled highway" which lies immediately north of and parallel to the railroad; the distance between the southerly curb of the Boulevard and the northernmost rail of the tracks is about 28 feet at the location of the crossing. The width of the separation between the highway and the railroad diminishes as they extend eastward. From the south, the tracks are numbered 1, 2, 3 and 4: No. 1, being the eastbound passenger
track; No. 2, the eastbound freight track; No. 3, the westbound freight track; and No. 4, ...