Appeal, No. 152, Oct. T., 1956, from judgment of Court of Common Pleas of Huntingdon County, Sept. T., 1953, No. 33, in case of Richard L. Flood v. The Pennsylvania Railroad Company. Judgment affirmed.
Samuel H. Stewart, with him Morris M. Terrizzi, for appellant.
C. Jewett Henry, with him A. Lynn Corcelius, and Henry & Corcelius, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 183 Pa. Super. Page 24]
Richard L. Flood, plaintiff, instituted an action in trespass against the Pennsylvania Railroad Company in which he sought to recover damages sustained to one of his trucks which was struck by defendant's train in its tie yard at Mt. Union, Huntingdon County on April 22, 1953. At the close of plaintiff's case, a judgment of compulsory non-suit was entered. Plaintiff's motion to take off the non-suit was refused, from which this appeal was taken.
The basic question involved is whether plaintiff's driver was guilty of contributory negligence. Viewed in the light most favorable to the plaintiff, the testimony discloses that about 5:30 P.M. of the day of the accident, plaintiff's driver arrived at defendant's creosoting tie plant at Mt. Union with a truck load of ties of mixed sizes. The entrance to the yard was closed and the defendant's watchman unlocked the entrance and admitted the driver and truck into the yard. During a period of one and one-half years preceding the accident, plaintiff's driver had delivered ties by truck to this yard on numerous occasions and was familiar with the yard and its operation. The driver proceeded on a driveway, approached and crossed switch track number 2, and then operated the truck approximately 44 feet from track number 2 to track number 2a until the truck stopped on track number 2a. The driver stopped the truck and observed a string of railroad cars standing on track number 2a at a distance of approximately two hundred or two hundred fifty feet from the truck.
Plaintiff's driver could have stopped the truck in several places: (1) before crossing track 2; (2) inasmuch as the truck was twenty-two feet long and in view of the fact that there was a distance of 43.9 feet
[ 183 Pa. Super. Page 25]
between tracks 2 and 2a, between these two tracks; (3) between tracks 2a and 3 which were almost sixty-two feet apart.
The driver did not see the locomotive attached to the other end of the thirteen-car train as it was hidden from his view by some ties stacked along the sides of the curving track. He left his truck and walked in the direction of the train along track 2a, a distance of approximately two hundred feet, looking for a place to unload. When the train commenced to move toward the truck, the driver unsuccessfully attempted to return to the truck to remove it from the crossing, and the rear of the train collided with and damaged plaintiff's truck. None of the train crew were aware of the presence of the truck on the crossing until after the collision.
The action was brought on theory that defendant company's employes, without looking, were negligent in backing into the truck which was in plain view and which could have been seen had the defendant's employes been more careful and observant before moving the train. Defendant contends that plaintiff, by his own testimony, admits that the driver of the truck had a choice of three safe places to park and ...