Buzby v. Philadelphia Traction Co., No. 182

No. 182 | Pa. | May 27, 1889

Opinion,

Mr. Justice Mitchell:

The plaintiff had been carried to his destination, had alighted from the car in a place of safety, and his relation to the defendant as a passenger had ceased. The case therefore is the ordinary one of a traveler about to cross a public street, on which are two sets of railroad tracks, besides the usual space for wagons, etc., between the sidewalks.

Counsel for plaintiff in error seem to lay much stress on the argument that the case is not within the imperative rule for railroad crossings, that the traveler must stop, look, aiid listen. But no such test was applied in the court below to the plaintiff’s conduct. On the contrary, it was expressly disclaimed, though the counsel Tor defendant called attention to the fact that the cars in question were so-called cable cars, whose controlling motive power was steam.

But the case was tried below, and must be tested here upon the universal rule which requires due and ordinary care in crossing public streets, as in all the other transactions of life. Even ou the sidewalk, specially devoted to the use of foot passengers, a man is bound to look where he is going, and this duty is still more imperative when he is about to cross the middle of the street, whore horses, wagons, and cars have equal rights with himself, and where each is bound to take notice of such other rights, and to use his own with due regard thereto. The language of C. J. Gordon, in Schmidt v. McGill, 120 Pa. 412, is precisely applicable to the present case: “ Here was a place where both parties must be on the lookout; the one for passing teams, and the other for foot passengers. Both have the right of way, and both must be equally cautious.”

The facts in the present case were undisputed. By his own evidence it appeared that plaintiff got out on the north side of the car, and was in a place of entire safety. If he had looked to the right he could have seen the south track, from which alone danger was to be apprehended, for a square or more to the west, except for a moderate space nearest to him where the car out of which he had just got would obstruct his vision. If he had waited a moment for the car to move on again, he would have had an unobstructed view of this space. He •neither looked nor waited, but turning sharply around the rear of the car started to cross the street. There was still a chance, however, for prudence and care. The space between the two sets of tracks was four and a half feet, and the overhang of the cars rather less than a foot on each side, still leaving room enough to stand in complete safety where a turn of his head would have shown him the whole track he was about to step on. Instead of looking, he bolted ahead right into the car which was upon him at the instant he set foot on the track.

This was a plain disregard of the dictates of the most ordinary prudence, and there was no room for a jury to be allowed to draw any other inference. The accident was unfortunate, but it was clearly the result of his own negligence, and the nonsuit was properly ordered.

Judgment affirmed.