203 Pa. 380 | Pa. | 1902
Opinion by
Corcoran, the plaintiff, was a truck farmer living near Coatesville in Chester county, and in carrying on his business had occasion to-make almost daily trips from his farm into the town. The farm at one side'is bounded by the railroad company’s right of way. A lane leads from the farmhouse across the railroad tracks at grade into the town, where at the boundary of the latter, it becomes a street called Third avenue; the street has a rather steep ascent just as it approaches the railroad and attains the level of the tracks, of which there are two, about fifty feet from them, the north track being for west-bound trains and the south for east-bound. Just east of the crossing there are four tracks; the two additional tracks east are used, principally, for the detention of freight trains while passenger trains pass. Corcoran had crossed the railroad with his horse and wagon into the town earlier in the morning, had transacted his business, and about ten o’clock was returning home; he drove up Third avenue until he reached the level of the railroad about fifty feet from the north track; he stopped there, looked and listened; about two or three hundred yards distant he saw a freight train slowly approaching from the west on the south track; he looked east to see if a train were coming from that direction, but his view was obstructed by box freight cars standing east of the crossing on the extra tracks and he saw no train coming; he then urged his horse into a faster gait, and without again stopping, attempted to cross the tracks; when he reached the north track his horse was struck by the Pittsburg express, a train running west at about twenty miles an hour, and which made no stop at Coatesville. The horse was killed, the wagon destroyed and the plaintiff seriously injured. He averred the injury was caused by the negligence of defendant, in that it gave no warning, either by whistle or bell of its approach to the crossing; thereupon, he brought this suit to recover damages.
At the trial the evidence was very conflicting as to whether
But was he right on the other point, that, assuming as a fact defendant's negligence, plaintiff had shown a case of contributory negligence on his part? The plaintiff drove his horse to the top of the ascent from Third avenue where he was on a level with the railway tracks and fifty feet from them; there he stopped, looked and listened; that was the place he alwa}rs had stopped, and usually, it was the most suitable place to see the tracks for a long distance both east and west; but at that particular time the view east was shut off by two trains of box cars standing on the extra tracks between the main tracks; it was no fault of his that he could not see through cars, but the fact that they were there, greatly increased the peril incident to the crossing; he stopped to “ look and listen ; ” the sense of sight was, by reason of the box cars, useless to him at that point; this would dictate to the ordinary prudent man great care, for care exercised must be according to the circumstances. What was the conduct of plaintiff under these circumstances ? He says, that after looking he thought he was all right, and gave his horse a cut with a switch starting him into a jog trot to cross; when he reached the north track the locomotive struck him. When he stopped to look he could see west that a freight was slowly coming towards the crossing but at such a distance he was in no danger from that direction ; whether a train, fast or slow, was coming from the east he did not know for he could not see ; he took the chances of hurriedly trotting across without stopping ; whether increasing his speed would avoid danger would depend on the exact distance a coming train was from him and its rate of speed as well as his own; his increased speed might avoid the danger or might run him into it; prudent drivers on account of the uncertainty in the calculation, generally, avoid the danger by waiting until the expected train has passed; but here the plaintiff did not know whether a train was five or ten minutes distant; he did not know that its schedule was about that time. He did not again look, although before actually getting on the first track he could have seen it 800 feet off and could not have been run down had he stopped. An adult thoroughly familiar with the movements of trains at a crossing, knowing that it was about the time for
“ The plaintiff himself says that he made but one stop, and when asked, “You did not look east again after you started? ” answered, “ I might have looked that way,” while all the witnesses who testified upon the subject say that he looked continuously to the west, and that such was undoubtedly the fact is evident from his driving directly in front of a train that he must have seen at any time after passing the baggage room had he looked to the east.”
And Justice Fell, in Muckinhaupt v. Erie Railroad Co., 196 Pa. 216, states the law applicable to these facts:
“ The whole duty of one about to cross the tracks of a steam road at grade is not in all cases confined to his stopping, looking and listening for the approach of a train. He must stop at a proper place and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks from which he can better discern whether there is danger.”
The judgment is affirmed.