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Lyman v. Pennsylvania Railroad Co.

Decided: October 17, 1932.

HENRY M. LYMAN, PLAINTIFF-RESPONDENT,
v.
PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Frank T. Lloyd, Jr.

For the respondent, S. Rusling Leap.

Parker

The opinion of the court was delivered by

PARKER, J. This is an appeal from a judgment of the Supreme Court entered upon the verdict of a jury after a trial at the Burlington Circuit. Plaintiff recovered a judgment of $3,000 for personal injuries and property damage suffered by reason of collision with gas-electric car of the defendant at a grade crossing on the Wrightstown-Pemberton road.

Plaintiff was driving his automobile in a southwesterly direction from Wrightstown to Pemberton about five-thirty o'clock on November 12th, 1929. It was just growing dark, visibility was poor, and lights on his car and on the gasoline-electric car of the defendant were lighted. The car of the defendant was proceeding northerly from Pemberton and in the opposite direction to the course of plaintiff. At the place in question, and to the south of the point of the accident, the tracks of the defendant parallel the public road on its southeasterly

side, which was on the left of the plaintiff. Before reaching the crossing in question, the tracks divide into two lines, the first curves to the left and crosses the highway diagonally to the north, and the second continues a short distance and then also crosses the highway diagonally to the north at a point two hundred and ten feet distant from the other crossing. The first mentioned of these lines is the Kinkora branch and the second the Hightstown branch. The car of the defendant was coming from Pemberton so that it was to the left of the road from the plaintiff, who reached the Hightstown branch crossing first. The defendant's car was proceeding on the Kinkora branch, and as it turned across the highway it came into collision with the automobile of the plaintiff. The location was an open one and there was no obstruction to vision.

Instead of having the customary crossing signs at each of these crossings, the railroad had erected but two such signs, one to the south of the southerly crossing, and one to the north of the northerly crossing. Each, in addition to the usual warning, had the words across the lower part "two crossings."

The negligence alleged in the complaint was failure to give the required signal of the approach of the train; failure to maintain a crossing free from obstruction to the view; and failure to give proper warning to persons on the highway of the presence of the crossing. The last of these was the only question submitted to the jury and is the crux of the case on this appeal.

Motions to nonsuit and direct a verdict were denied. These motions were based upon failure of proof of negligence and contributory negligence. The first point argued here concerns the denial of these motions, but the only reason urged now is that there was no evidence of defendant's negligence.

The trial judge withdrew from the jury the question of the ringing of the bell and blowing of the whistle, submitting to them the sole question of the sufficiency of the crossing sign on the near side of the first track, marked "two crossings" as a warning to plaintiff of the existence of the second ...


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