Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway
27 A. 970
Pa.
1893
Check Treatment

Opinion by

Mr. Justice Mitchell,

The cases arising from that prolific source of danger and accident, the grade crossing of railroads, are unfortunately numerous, and the lines of legal responsibility for the negligence of defendants or the contributory negligence of plaintiffs, have consequently been drawn sharply, and with fine, though well settled distinctions. The cases beginning with R. R. Co. v. Heileman, 49 Pa. 60, and R. R. Co. v. Beale, 73 Pa. 504, have established not only the rule that the traveler about to cross a railroad track must stop, look, and listen, as an absolute and unbending rule of law, founded in public policy for the protection of passengers in railroad trains, as much as of travelers on the common highways, but also that such stopping, looking and listening must not be merely nominal or perfunctory, but substantial, careful, and adapted in good faith for the accomplishment of the end in view. Hence the necessary corollaries of the rule were drawn in R. R. Co. v. Feller, 84 Pa. 226, and Carroll v. R. R. Co., 12 W. N. 348, and Marland v. R. R. Co., 123 Pa. 487, that the traveler must stop and look where he can see, and that he will not be allowed to say that he did so, when the circumstances make it plain that the proper exercise of his senses must have shown him the danger.

These principles are settled beyond question, but the application of them to the infinite varieties of circumstances and evidence in accident cases is not always easy. All that this court can do is to lay down the general rules, and to say that where the facts are uncontested or the inference of negligence the only one that can be drawn, the court must pronounce the result as matter of law, but where the facts are in dispute, or the inference from them open to debate, they must go to the jury. This is the result of all the cases, the latest of which are R. R. Co. v. Frantz, 127 Pa. 297; McNeal v. R. R. Co., 131 Pa. 184; Ellis v. R. R. Co., 138 Pa. 506; Neiman v. D. & H. Canal Co., 149 Pa. 92; Urias v. R. R. Co., 152 Pa. 326; McGill v. R. R. Co., Id. 331; Groner v. D. & H. Canal Co., 153 Pa. 390; and Whitman v. R. R. Co., 156 Pa. 175.

The evidence in the present case shows that the plaintiff stopped, looked and listened before driving on the track. He was therefore not proceeding recklessly, but with some degree of attention to the situation and his duty in regard to it. The *237mere act of stopping does not it is true of itself show that he stopped at a proper place, or that there was not another and better place where he should have stopped again, or that his duty of looking and listening was performed with the proper care and attention, but stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury.

But it is argued, and this is the pinch of the present case, that the plaintiff’s own testimony shows that he stopped at a place where he could not see. If this is the clear result of his testimony the consequence may be conceded. It was said in Kohler v. R. R. Co., 135 Pa. 346 (357), that “ If plaintiff’s own testimony had shown that he was negligent, he could not complain if the court took his case as he made it, although another witness had done better for him than he had for himself.” The point decided, however, in that case (and see also Brown v. Barnes, 151 Pa. 562) was the converse proposition that where plaintiff has made out a ease for himself he cannot be nonsuited although another of his own witnesses shows his negligence.

The present case is upon the very border line. The testimony of the plaintiff upon the subject of his stop is extremely muddled and conflicting. In his first account he says that he stopped “ within about forty feet of the track and listened for the train ; ” again that he leaned forward in the buggy, “ looked both ways and listened for the whistle; ” again he repeats that he stopped, looked both ways and listened, and adds that he satisfied himself that there wasn’t any approaching train before he started, and that he “ used all the caution that any man could do.” On the other hand he says more than once that from about seventy feet back from the track and therefore necessarily from where he stopped, owing to a cut and embankment in the road, an approaching train could not be seen; and upon cross examination, he admits flatly, more than once, that he could not see down the track from where he stopped. Yet when his attention was called to the uselessness of looking where he could not see, his explanation was that until within seventy feet of the track he was where he “ could see the train without putting himself to any trouble, because he was driving *238near the track.” This testimony was contradictory, and the net result of it by no means clear. On part of it he was plainly entitled to go to the jury, on the other part equally plainly he was not. Under these circumstances the case must go to the jury, whose province it is to reconcile conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail. Had the testimony referred to a subject as to which the burden of proof was on the plaintiff, the result might have been different, for the court is not entitled to submit evidence which will merely enable a jury to guess at a fact in favor of a party who is bound to prove it. But in cases like the present, the plaintiff is not required to disprove contributory negligence, but only to make out a case clear of it. Unless, therefore, his negligence appears affirmatively, he is entitled to go to the jury on the general presumption against it, and so likewise where the evidence is conflicting as it was here. The weight of the evidence appears to us very clearly against the plaintiff on this point, but that was for the jury and the court below.

Judgment affirmed.