55 Pa. Super. 599 | Pa. Super. Ct. | 1914
Opinion by
That there was an imperative legal obligation on the plaintiff to look for an approaching car immediately before he undertook to cross the tracks of the defendant company is no longer a debatable question. In Timler v. Rapid Transit Company, 214 Pa. 475, where the facts closely resembled those presented by this record, Mr. Justice Elkin said: “The undisputed evidence is that when appellant looked the second and last time the head of his horse was nine feet from the track, while he himself was seated on his wagon nearly twenty feet distant. When he last looked and saw the approaching car it was necessary, in order to cross in safety, that he should drive nine feet to the track, five feet across it, which added to the length of his horse and wagon, eighteen feet, made a total of thirty-two feet before he could pass the car in safety. Notwithstanding these facts, he disregarded his duty to look immediately before going upon the track, and was injured by the collision with the car. Under the settled rule of our cases he was guilty of contributory negligence, and there can be no recovery. This court has frequently said that when the driver of a team at the intersection of' two city streets, fails to look immediately before going upon the track, he is guilty of contributory negligence.” (Many cases cited.) In Smathers v. Street Railway Co., 226 Pa. 212, the same learned justice uses the following language: “What was really decided in these cases and in the long line of cases which follows was that it is the absolute duty of a traveler or the driver of a team at the intersection of two city streets upon which is laid a line of street railway to look immediately before going upon the tracks, and failure to do so is negligence per se. . . . The one positive and imperative duty always required under such circumstances is to look when the tracks are reached and immediately before attempting the crossing. Failure to perform this absolute duty will defeat a recovery under the authority
The plaintiff, in the present case, was unable to testify that he had complied with this imperative rule of the law. The most he could say was that his wagon, backed up to the south curb of Market street to receive a load, was so standing that the heads of his horses were about ten feet from the defendant’s eastbound track. As he climbed into his seat, prepared to move the wagon, he looked westward and saw the defendant’s car at a standstill on the west side of Thirtieth street, about 200 feet distant. He started his team, and without looking again, drove upon the track and never saw the car, from the moment he had seen it standing on the west side of Thirtieth street, until it struck his wagon. “Q. When your team was backed up against the south curb, your horse’s head was about seven feet from the track? A. I think a little more than that. Q. Probably about ten feet? A. Yes, sir, around there. Q. Where were you when you saw this car? A. I was in my wagon. Q. Getting in the wagon? A. I was in the wagon. Q. What part of the wagon? A. The front. Q. Just stepping into the seat? A. Yes, sir. Q. You started your horse? A. Yes, sir. Q. The first thing you knew you were struck? A. The first thing I knew I was struck with the car. . . . Q. The only time you saw the car before you were struck was when it was standing at Thirtieth street? A. I looked and saw the car standing, and just pulled out. Q. As you got in the wagon? A. Yes, sir, when I got in the wagon I looked. By the Court: Q. When you looked then it was standing still? A. Yes, sir, it was standing still.” Had he been able to say that he looked just before his horses moved on to the
Judgment affirmed.