Death Caused by Negligent Act in Another State. 155. Where a person is injured in another State on a train starting from Pennsylvania, and subsequently dies of his injuries in Pennsylvania, no action can be brought in Pennsylvania by the widow of the deceased suing for herself and hr children, unless there was a negligent act or omission in Pennsylvania which was directly responsible for the injury received in the other State.25 Evidence. 156. In an action by a widow against a railroad company to recover damages for the death of her husband, a written statement signed by the husband before his death giving an account of the accident is admissible in evidence.2 26 only as injuries to himself and in addition to that a new and other and independent right of action to the widow in her own right, and for her own benefit, and for the injury to herself. No such purpose is avowed in the Act, and no such meaning is within its language. "We do not think the Act of April 26, 1855, P. L. 309, affects this view of the subject or makes any change in the fundamental character of the previous legislation. It simply enlarges the designation of the persons entitled to recover damages for an 'injury causing death' so as to embrace children or parents of the deceased, and expresses the mode of distribution of the damages recovered. "The right of action was in its origin the sole property of the husband, and of course subject to his control. If he exercised it and conducted it to verdict, judgment and satisfaction in the courts, that was the end of it. Neither he nor any one else could maintain a second action for the same injury. So also he could compound it, and could adjust the amount to be received from the offending party and could agree that the amount received should be a full solatium for the injury and the damage sustained. That would be a necessary incident to his ownership of the right of action. Such an adjustment would be the full equivalent of a verdict, and judgment in an adversary proceeding. In either event the remedy would be exhausted. It would have to be conceded that this must be so, if subsequently to the adjustment, some other and more serious consequence resulted from the injury than any that was anticipated when the settlement was made, and we know of no reason why this would not be true when such ulterior consequence was the death of the party injured. The very question we are considering has been adjudged in the Queen's Bench in England in the case of Read v. Great Western Railway Co., L. R. 3 Queen's Bench 555." 25 Derr v. Lehigh Valley R. R., 158 Pa. 365 (1893.) 26 Hughes v. Del. & Hudson Canal Co., 176 Pa. 254 (1896.) Failure to Stop, Look and Listen is Negligence per se. 157. Failure on the part of a person crossing a railroad track at grade to "stop, look and listen" is negligence per se. Plaintiff, while driving a two-horse team was injured at one of defendant's crossings. Plaintiff could see the track until he reached a point about twenty-five feet from the crossing, when his view was obstructed by a bridge. He testified that he drove slowly, looked and listened, but that he drove upon the crossing without stopping. It was held that plaintiff was guilty of contributory negligence and could not recover.1 Where a person goes on the track of a railroad immediately in front of an approaching train at a point where nothing intervenes to obstruct the view, the court will say as a matter of law that he was guilty of negligence, notwithstanding the assertion that he stopped, looked and listened before going upon the track.2 I Ritzman v. Philadelphia & Reading R. R., 187 Pa. 337 (1898.) 2 Sheehan v. Philadelphia & Reading R. R., 166 Pa. 354 (1895.) A non-suit is properly entered where the plaintiff's own evidence shows that she did not stop, look or listen before stepping on the first four tracks at a crossing, and that after starting upon the tracks she did not look when she could have seen the locomotive which struck her, or, if looking, took the chances of getting across in front of it.3 Plaintiff while driving a wagon stopped at a point about one hundred and fifty feet from a railroad crossing. Looking to the east he was able to see trains approaching for a distance of six hundred feet, intercepted for a short distance by a station building, and from the west several hundred feet. At a point sixty feet from the crossing a view of the trains approaching from the east was unobstructed for a distance of four hundred and forty-five feet, and approaching the crossing nearer it became more extended. Having stopped at a distance of one hundred and fifty feet from it, appellant moved on at a walk toward it, without looking east, and having reached a point in close proximity to the tracks, the ends of the shaft of his buggy were struck by a train coming from the east, resulting in his being thrown out of his buggy, injured, and his horse running away. He testified that he did not see the train in question until it was within a short distance of him because he was not looking eastward, the direction from which it came, that he was leaning forward and looking westward, and again that he was looking the other way when the train came upon him and he subsequently directed his whole attention to the west for a distance of more than sixty feet from the crossing. Held that a non-suit was properly entered.4 There can be no recovery where the only two persons who saw the accident testified that deceased drove on the track without stopping and that the wagon was struck as it was in motion crossing the track; that the deceased was pulling the horse in an attempt to stop him, and that he could have seen the train if he had looked before going upon the track.5 3 Smith v. Philadelphia & Reading R. R., 160 Pa. 117 (1894.) 4 Canfield v. Baltimore & Ohio R. R., 208 Pa. 372 (1904) 5 Coppuck v. Philadelphia, Wilmington & Baltimore R. R., 191 Pa. 172 (1899.) The testimony of the plaintiff himself that he stopped, looked and listened, immediately before going upon a railroad track, unsupported by other testimony and contradicted by the evidence of five witnesses, and by the fact that he was struck immediately upon going upon the track, is not sufficient to carry the case to the jury. A person cannot recover damages from a railroad company for injuries sustained at a grade crossing where it appears that she stopped at a point where a locomotive could only be seen for forty-one feet, and that she then went on and was struck by a locomotive the instant she touched the track, although if she had stopped at a point six or seven feet from the track, she could have seen the locomotive for a long distance.7 Plaintiff's husband while driving an open two-horse farm wagon approached from the eastward a double track railroad running in a general direction from north to south. The deceased stopped at a point about forty feet from the track, at which point a train could be seen coming from either direction for eight hundred or one thousand feet. At the crossing itself, a train could be seen for more than a third of a mile. The deceased could have seen the train which killed him, if he had looked when he was fifteen or twenty feet from the track. It was held that the deceased was guilty of contributory negligence, and that plaintiff could not recover.8 It is contributory negligence for a person after stopping at a point one hundred and twenty-five feet from a country railroad crossing to proceed again without again stopping in a heavy rain with the wagon curtains down and with the view obstructed until the tracks are reached and if he is killed by a passing train no recovery can be had for his death." Plaintiff's foreman driving plaintiff's covered bread wagon approached a grade crossing. While driving on the crossing from the north to the south side of the track after the horse 6 Holden v. Philadelphia R. R., 169 Pa. 1 (1895), reversing 7 Kulp 52 (1893-) 7 Derk v. Northern Central Railway, 164 Pa. 243 (1894.) 8 Gangawer v. Philadelphia & Reading R. R., 168 Pa. 265 (1895.) 9 Knox v. Philadelphia & Reading Ry., 202 Pa. 504 (1902), affirming 17 Montg. 177 (1901.) and front part of the wagon were across the west bound track, the rear part of the wagon was struck by the locomotive of a passenger train going west, breaking the wagon and destroying the bread and cakes. Plaintiff's evidence disclosed that he stopped at a distance forty feet from the track of the train which struck him; that from that point he could see an approaching train five hundred feet in the direction from whence the train which struck him came; that had he stopped fifteen or twenty feet from the track he could have seen the train at a distance of from three hundred to four hundred and eighty feet, and that he drove on the track from the point where he stopped forty feet distant from the track without a further stop. It was held that plaintiff was guilty of contributory negligence in not stopping nearer the track and the court refused upon motion to take off the non-suit.10 Plaintiff, after loading two trunks at defendant's depot upon his wagon which had a covered seat, drove along the highway for a distance of two hundred feet parallel with the railroad, being separated from it by a platform eleven feet wide and three feet high. The highway crossed the track at a point about fifty feet from the end of the platform. After driving this distance, of about two hundred feet in all, parallel with the railroad, plaintiff turned his horse toward the track intending to cross. Just then a fast train passed and the horse was struck either by reason of having been driven too near to the track or because in its fright it moved close enough to be struck by the passing train. The horse was killed, and plaintiff was injured. At the station plaintiff could see down the track for nearly a mile in the direction from which the train came. Plaintiff did not look down the track as he turned towards the crossing. It was held that the action of the court in entering a non-suit was proper.11 Deceased driving a wagon was killed at a crossing. The only point in the road upon which he was driving from which the railroad could be seen in the direction from which the train came which struck him was about one hundred and 10 Mealey v. Central R. R. of N. J., 5 North. 85 (1895.) |