Opinion by
Susan' Baker, the wife of plaintiff, on September 26, 1892, was a passenger, west-bound, on defendant’s road, her destination being Losh’s station, where she arrived after daylight in the morning. When the train stopped at the station, she was aided in alighting on the platform by the conductor; at the time, she had a basket on her arm. At that point, there are three tracks; the north is for west and the south for east-bound trains; the middle one is used, principahy, for standing cars; there is a platform for passengers along both north and south tracks, to accommodate east and west-bound travel. A public road crosses the railroad at grade at the east of the platforms; thirty-seven feet west of this, a plank footwalk, five feet four inches wide, also crosses the railroad between the platforms, at grade. When last seen on the platform where she alighted, deceased was starting, with her basket on her arm, to walk across the footwalk in the direction of her home. She was not again seen by any witness until Wetzel, the fireman on Keystone express running east towards the crossing, saw her. He testified
The court was requested to instruct the jury that under all the evidence the plaintiff could not recover; this was declined. The purpose of the point was to secure an affirmance of defendant’s averment of contributory negligence on part of deceased. The opinion of the learned judge of the court below on this question appears from this excerpt from the general charge.
Was this correct instruction, in view of the undisputed facts ? In broad day, an adult, with the senses of sight and hearing unimpaired, is about to cross three tracks of a railroad; a train is approaching a quarter of a mile distant; she could see it seventy feet off before she sets foot on the track nearest her; before she gets off that track she can see it for one hundred and sixty feet; before she puts her foot On the next, the middle track, she could see it two hundred and twenty-four feet distant ; before she steps on the track whereon it is coming she could see it nine hundred feet distant; nevertheless, she stepped on the track and was instantly killed. If she stopped and looked before she stepped on that track she saw the train; if she did not stop and look she was guilty of contributory negligence; if she stopped and looked she saw it and was’ negligent in attempting to cross before it passed. On the undisputed facts there is no escape from the conclusion of contributory negligence. The presumption is that she stopped and looked; if we conclude the presumption is not rebutted, then follows the inevitable one that she attempted to cross with a locomotive in full view.
The engineer and fireman both testify they saw her when two hundred yards off, and while they expected her to stop, she did not stop; as soon as they were conscious that she would persist in- crossing, the brakes were put on, and the danger signal given, but too late; as to giving the signal, one of plaintiff’s witnesses
The judgment is reversed.