148 Pa. 133 | Pa. | 1892
Opinion by
The plaintiff’s husband was crushed under the cars of the defendant company, and this action was brought by her to recover damages. The cars were at the time upon a siding or track belonging to the rolling mill of Kurtz & Son, and the plaintiff alleged that the death of her husband was due to the negligent handling of the cars, and to the neglect to give warning that the work of shifting the cars was in progress. The de
This left two questions for consideration in determining the measure of care incumbent on Mr. Ash. Was the siding being used at the time the accident happened ? If so, did Mr. Ash know it, or had he such knowledge as brought notice home to him of that fact ? The first of these was not a question but a fact, on which the plaintiff’s right to recover depended, and which was not controverted, and could not be. The jury was left, therefore, to inquire if Mr. Ash knew this fact, with the idea that if he did he was bound to the exercise of care, while if he did not, then no duty rested on him, but he was at liberty to go, as the evidence shows that he did go, upon the siding in front of the standing cars, without the slightest effort to inform himself of the situation. A single glance would have disclosed the impending danger, and enabled him to avoid it; but, if the jury should find that he did not know what that glance would have disclosed, he was not bound to make it. In other words, he was under no duty to inform himself. This is not an accurate statement of the rule, and, as applied to the facts of this case, was misleading.
Mr. Ash had been at work in or close by this mill for ten days or more. Each morning an engine had brought several ears into the mill, and removed those left on the morning before. The existence of the siding, and the use to which it was put, were necessarily within the knowledge of the employees at work in and about the mill. Mr. Ash may not have known that it was in actual use when he approached it. Let us assume that the jury found that he did not, for reasons that were satisfactory to them, and sufficient to justify the finding. But he knew the fact that the siding was across his path, that two cars were upon it, that they were to be taken away at some
If one approaching a crossing in a public street should rush forward without stopping, looking or listening for an approaching train, and reach the middle of the track, just in time to be crushed by a train that he would have seen if he had looked, no one would doubt that the failure to inform himself, or to try so to do, would be gross negligence. If one passing along a street in the daytime walks against a temporary obstruction lawfully in the highway, which he should have seen by the exercise of ordinarj' care, he must blame himself if he suffers harm by contact with it. It is not enough, therefore, that we try to avoid dangers of whose existence we have knowledge ; we must exercise ordinary care, by the use of our senses, to detect the presence of danger of which, until thus discovered, we were ignorant.
This is the reason of the rule that one approaching the track of a railroad, with a view to cross it, must stop and look and listen. The instinct of self-preservation might be trusted to keep the traveler from getting in front o £ a train that he knew was approaching the crossing. The rule requires him to inform himself whether a train is approaching or not. When his senses afford him the information he acts upon it at his peril. So in the case in hand. We do not say that before crossing a siding like that belonging to this mill, a man must, under all circumstances, stop, look and listen, but we must say that it is his duty to see if it is in actual use at the time he approaches it, and not to walk into the open jaws of death, when the exercise of ordinary care would have made their position apparent.
The judgment is reversed.