130 Pa. 380 | Pa. | 1889
Opinion,
This is a perfectly clear case of contributory negligence, un
From this point I take the narrative in the language of Irwin, the deceased’s companion: “When we come to the track, we noticed a train coming. Q. That is, to the main track? A. Yes, sir; and it was pretty close before we seen it; and Mr. Aiken attempted to go on,.and I stopped. I said: ‘We had better stop;’ and he says, ‘Come on; we can get across; ’ and he started, and I stopped. I had attempted to get across, and by the time I was at the track I could lay my hand on the engine.” None of these facts were in the slightest doubt, for the evidence was in behalf of the plaintiff, and was that of the only witness who saw the accident. It is therefore indisputable that the deceased saw the train while he Avas
The learned counsel for the defendant in error has endeavored to assimilate this case to Penna. R. Co. v. Werner, 89 Pa. 59; but there is a marked and insuperable line of distinction between them. That was said by our Brother Sterrett, in his opinion, to be a close case; but, in laying down the rule that a man in a position of danger is not responsible for a mistake of judgment in getting out, he was careful to add the explicit qualification that he must have got into the danger without negligence or fault of his own. Keeping this qualification in mind, that case was the logical sequence of Johnson v. Railroad Co., 70 Pa. 357. But in the present case the essential premise is wanting. Aiken not only walked into the dangerous position without any of the precautions which the situation required, but, when confronted with the actual emergency, had his attention called by his companion to the danger imminent, and his reply, “ Come on; we can get across,” — does not indicate a man who was confused, and in doubt what to do, but one who saw the risk, and chose to encounter it.
In the portion of the charge contained in the fifth specification of error, the learned judge said to the jury that, “ ordinarily, the rule of law is ... . that a man before crossing a railroad track must stop, look, and listen.....I think that it is usually applied, however, to parties who are driving, and not to parties walking. It is, after all, not a rule of law, but a rule of evidence only; and therefore the duty of stopping is always a question for the jury.” This was clear error. The rule as to stopping applies equally to persons walking as to persons driving. There is no distinction, in the nature of things, except of degree as to danger, and none is recognized in the cases: Nagle v. Railroad Co., 88 Pa. 35; Carroll v. Railroad Co., 12 W. N. 348; Penna. R. Co. v. Coon, 111 Pa. 430; Marland v. Railroad Co., 123 Pa. 487. It is made quite as much for the safety and protection of passengers on the train as of passengers on the highway; and the stopping is an essential part of
The evidence in the sixth assignment, relative to the speed at which trains usually ran over this crossing, was irrelevant, and tended to divert the attention of the jury from the particular case to the general condition of danger at this crossing. This objection was not obviated by the testimony of Irwin that he thought the train was going “ about the usual rate of speed.”
The assignments of error must be sustained.
Judgment reversed.