
    Szmigel v. Director General of Railroads, Appellant.
    
      Negligence — Railroads—Grade Crossing accidents — Contributory negligence — Stop, looh and listen — Rebuttal by facts — Train in plain view.
    
    In an action to recover damages for personal injuries, a verdict for tbe plaintiff will be reversed, where the evidence shows that the accident took place in broad daylight, that the plaintiff had stopped at a point where his view was obstructed by a watchman’s box, but that after he had passed that point he could have seen for a distance of half mile if he had looked, and that he testified that he did hot see the train until it was within 175 feet of his automobile.
    The duly of one about to pass over a grade crossing to be watchful, is not discharged by stopping and looking at a place where he cannot see; he must continue to carefully observe conditions as he proceeds until the zone of danger is passed.
    If the plaintiff had looked after he had passed the watchman’s box he must have seen the train somewhere upon the track which, according to his own admission, was visible for a half mile. He either saw the train and took chances of getting over before it reached the crossing or he did not look. It is vain for a plaintiff to assert that he looked, when, under the conditions to which he testifies as existing, if he had looked, he must have seen the train, directly in front of which he drove.
    Argued October 7, 1920.
    Appeal, No. 195, Oct. T., 1920, by defendant from judgment of C. P. No. 1, Pbila. Co., March T., 1918, No. 4633, on verdict for plaintiff in the case of Stanley Szmigel v. Director General of Railroads, United States Railroad Administration, operating Philadelphia & Reading Railroad.
    Before Or-TiAnv, P. J., Porter, Henderson, Trexler, Keller and Linn, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Shoemaker, J.
    Verdict for plaintiff for $1,500 and judgment thereon. Defendant appealed.
    
      Error assigned was refusal of defendant’s motion for judgment non obstante veredicto.
    
      Wm. Clarke Mason, for appellant,
    cited: Hare v. Phila. & R. Ry. Co., 65 Pa. Superior Ct. 39; Thompson v. Phila. & R. Ry. Co., 263 Pa. 569; Kipp v. Central R. R. of N. J., 265 Pa. 20; Smith, admr., v. Director General of Railroads, 266 Pa. 328; Gasser v. Phila. & R. Ry. Co., 266 Pa. 493; Provost v. Director General of Railroads, 265 Pa. 589.
    
      
      Louis Goodfriend, fox* appellee.
    March 5, 1921:
   Opinion by

Porter, J.,

The plaintiff sustained injuries when Ms autotruck, which he was attempting to drive over a grade crossing, was struck by a passenger train, and brought this action to recover damages for such injuries, averring that they resulted from the negligence of the employees of the defendant. He recovered a judgment in the court below and the defendant appeals.

The plaintiff relied solely upon his own testimony, calling no other witness as to the circumstances in which the accident occurred. He stated that as he approached the crossing, the safety gates being up, he stopped at a point where the front of his truck was ten feet from the first track, his seat upon the truck was five feet back of the front of the vehicle, placing him fifteen feet from the track, there were two tracks to be crossed, the first being the southbound, the other the northbound track, the space between the two being eight or ten feet. His view, from the point where he stopped, toward the south, from which the train came that struck him, was obstructed by the watchman’s box and he could see along the northbound track, in the direction from which the train came, only about one hundred and seventy-five feet. He then proceeded, passing the watchman’s box which stood about eight or ten feet from the track, drove across that space, passed the first or southbound track without mishap and when the front wheels of his truck were about to enter the second or northbound track he saw a passenger train rapidly approaching upon that track and only about one hundred and seventy-five feet distant, he tried to increase the speed of the truck and pass in front of the train, but the hind part of the truck was struck by the locomotive. He testified that he was driving at the rate of between three and five miles an hour and that he could stop the truck within five feet. The accident occurred in broad daylight, between one and two o’clock in tbe afternoon. Hús testimony clearly demonstrated that, from tbe moment be bad passed tbe watchman’s box and before tbe truck bad entered upon tbe first track, until be drove in front of tbe approaching train, bis view of tbe tracks towards tbe south for half a mile was unobstructed. It is clear beyond question if be bad looked with attention, as was bis duty, be must have seen tbe approaching train. It is true that be said be looked, but bis testimony as to this matter was shifting and evasive. His cross-examination brought out tbe following admission:

“Q. You looked, as I understand it, at a position where tbe watchman’s box prevented you from seeing tbe track? When you first looked, tbe watchman’s box interfered with you?
“A. Yes, sir.
“Q. Then tbe next time you looked, tbe train was 175 feet away from you?
“A. As I went on tbe second track?
“Q. Yes.
“A. Yes, sir; I seen tbe train coming.”

Trains move along tbe tracks. When a track is plainly visible for half a mile, a train does not suddenly come out of tbe air and appear upon that track at a distance of only one hundred and seventy-five feet from a grade crossing. Tbe duty of one about to pass over a grade crossing to be watchful is not discharged by stopping and looking at a place where be cannot see; be must continue to carefully observe conditions as be proceeds until tbe zone of danger is passed. If this plaintiff looked ■after be bad passed tbe watchman’s box'be must have seen tbe train somewhere upon tbe track which according to bis own admission, was visible for half a mile. He either saw tbe train and took chances of getting over before it reached tbe crossing, or be did not look. It Is in vain for a plaintiff to assert that be looked when, under tbe conditions to which be testifies as existing, if be bad looked, be must have seen tbe train, directly in front of which he drove. The injury received by the plaintiff was attributable solely to his own carelessness: Thompson v. Philadelphia & Reading Ry. Co., 263 Pa. 569; Kipp v. Central R. R. Co. of New Jersey, 265 Pa. 20; Provost v. Director General of R. R., 265 Pa. 589; Smith v. McAdoo, Director General, 266 Pa. 328; Gasser v. Phila. & R. Ry. Co., 266 Pa. 493; Luken v. Pennsylvania R. R., 267 Pa. 315. The point of the defendant requesting binding instructions ought to have been affirmed and the motion for judgment non obstante vere-dicto must prevail.

The judgment is reversed and judgment is now entered for the defendant.  