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November 11, 1957


Appeals, Nos. 156 and 157, March T., 1957, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1954, No. 629, in case of Marie Proet vir v. The Pennsylvania Railroad Company. Judgments affirmed.


Bruce R. Martin, with him Pringle, Bredin & Martin, for appellant.

Marvin D. Power, with him Suto, Power, Goldstein & Walsh, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 439]


Plaintiffs, Marie Pro and her husband, Frank Pro, instituted a trespass action against the defendant, the Pennsylvania Railroad Company, to recover damages for injuries sustained by the wife-plaintiff when she fell while walking across a railroad crossing over defendant's right of way. The action was tried before a judge and jury and resulted in verdicts for the wife-plaintiff in the amount of $25,000 and for the husband-plaintiff in the amount of $5,000. The court below refused to grant defendant's motions for judgment n.o.v. and for a new trial. Judgments were entered on the verdicts and these appeals ensued.

The accident occurred on February 19, 1954, a clear day, at approximately 1:30 P.M. At that time the wife-plaintiff was walking to her place of employment in the Corning Glass Company plant located in Charleroi, Pennsylvania. In order to reach this plant it is necessary for all of the Corning Glass employees, whether afoot or in vehicles, to cross defendant's railroad crossing which leads from 8th Street, a public highway in the Borough of Charleroi, into the plant. The testimony was uncontradicted that this was the only approach used by the employees to enter the plant. The crossing was paved and was wide enough for two cars to pass abreast upon it. The wife-plaintiff was in the act of traversing this crossing - she had reached a point about halfway across it - when her right foot became caught in a hole, causing her to fall and suffer very severe injuries. She testified that while she was in the act of taking her last step - the one which caused the fall - she heard the sound of an automobile behind her, turned to look in that direction, and stepped into the hole while her attention was thus distracted.

[ 390 Pa. Page 440]

Upon this appeal defendant maintains that it is entitled to judgment n.o.v. on the grounds that (1) the wife-plaintiff was contributorily negligent as a matter of law, and (2) that there was no proof of any duty of maintenance of the crossing on the part of the defendant. In addition, defendant contends that the court below erred in instructing the jury that the crossing was public and that defendant had the duty to maintain it. Defendant argues that this was a question of fact for the jury under the testimony and that the court usurped the jury's function in this regard, thus requiring that a new trial be granted.

The wife-plaintiff testified that she had carefully proceeded across the crossing up to the point where she fell, that she was fully aware of the very poor condition of the roadway and the great need for care, and that she was simultaneously keeping a sharp lookout for trains approaching the crossing. It was while she was thus busily engaged that the sequence of events heretofore recited occurred and caused her to fall. The hole into which she stepped was large and clearly visible and, by her own admission, she would have seen it had she not turned her head to look behind her while taking her last step. Unquestionably, absent the sound of the automobile, the wife-plaintiff would have been clearly guilty of contributory negligence as a matter of law. The law is clear that where a party walks into an obvious, clearly visible defect in his path in broad daylight he must shoulder the burden of proof of conditions outside himself which prevented him from seeing the defect or excuse his failure to observe it: Cox v. Scarazzo, 353 Pa. 15, 17, 44 A.2d 294; Leson v. Pittsburgh, 353 Pa. 207, 210, 44 A.2d 577; Sculley v. Philadelphia, 381 Pa. 1, 9, 112 A.2d 321. It is obvious that where such conditions do exist the party then has an excuse for walking by faith.

[ 390 Pa. Page 441]

The wife-plaintiff was firm in her assertion that she had used great care in proceeding over the crossing. In her situation she was under a duty noit only to exercise care to avoid abvious defects in her path, but also to remain on the lookout for approaching vehicles; she was not required to focus her attention exclusively on the pavement immediately in front of her to discover possible defects therein: Lerner v. City of Philadelphia, 221 Pa. 294, 70 A. 755; Williams v. Kozlowski et ux. (et al.), 313 Pa. 219, 225, 169 A. 148; Sculley v. Philadelphia, supra, p. 10. The wife-plaintiff knew that the shifts were changing at the Corning Glass Company plant and she had every reason to anticipate that automobiles might enter the crossing from either direction at any time. She was also aware of the need for a lookout against trains approaching the crossing. In view of these factors, and considering the fact that she was 59 years old at the time and consequently neither as sure-footed nor as immune to panic as a younger pedestrian might be, we are not able to hold that her negligence, if any existed, was so clear that the lower court could properly declare it as a matter of law. This Court has frequently held that contributory negligence may be judicially determined ...

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