182 Pa. 172 | Pa. | 1897
Opinion by
This case was nonsuited in the court below on the ground of the plaintiff’s contributory negligence. If that ruling was proper under the evidence the judgment should be affirmed, otherwise it should be reversed. The plaintiff approached the track on the morning of October 9, 1895, between seven and eight o’clock.' According to his own testimony he reached a point 35 feet distant from the track, and there stopped and looked both ways and listened for an approaching train which he knew to be due there at about 8 A. M. He did not see or hear any train or engine approaching. He had traveled the road very frequently, and was well acquainted with the schedule time of the next regular train. The train he was expecting approached from the east, and its schedule time was 8:10. He drove his horse on a walk from the point 35 feet distant and, without stopping again, he went on the track, and was immediately struck by a locomotive coming from the west, with tender in front and caboose behind. He said he heard the danger signal whistle at the cattle chute, which was 186 feet distant, and upon turning to look, the train was on him. It is manifest that the question of his contributory negligence turns upon his actions at and after leaving the point 35 feet distant, and also upon the physical situation along that distance. He had thrown back both of the side doors of his wagon at a point 300 feet distant, and kept them open so that he could easily see and hear in either- direction along the track from his wagon. At a point 35 feet distant from the track there was a sign-board set up with the words “ Railroad Crossing ” on it. The plaintiff was asked : “ Q. When you were at the point 35 feet from the
The plaintiff’s account of the accident was given thus in his testimony: “ I was looking down towards Harrisburg and just as my horse got right on the track he made a spring; I grabbed up the lines as well as I could and took a better ..grip and, at the same time, I looked out towards my right, and to my astonishment there was an engine with the tender in front coming towards me at a furious rate of speed, and in less time — or in about two seconds, I would suppose — -because I don’t know whether I drawed my breath once or twice — and in less than no time — of course the whistle was sounded right at the cattle chute. Q. What sort of a whistle ? A. A kind of a toot, toot, a shrill whistle. Of course that made the horse all the worse. I seen the condition I was in and had not a moment’s time to
It is perfectly manifest from the foregoing testimony that when the plaintiff left the point 35 feet distant he never once looked in the direction from which the engine was approaching; that he was going on a walk only; that he went directly upon the track without again stopping or looking, and was immediately struck. He could see in that direction a distance of 855 feet, but because he did not look he did not see. He says, what was no doubt the fact, that he was looking in the opposite direction for a train that he was expecting, but which was not yet due, and he admits that it was this that diverted his attention to that side. As a matter of course it was very unfortunate that he omitted to look in the opposite direction, and it is perfectly obvious that if he had done so the accident would not have occurred. The case is extremely plain, and is readily disposed of by a consideration of the plaintiff’s testimony only. The learned court below was clearly right in granting the non-suit and in refusing to take it off. No other course was open without a clear disregard of the large number of cases which have thoroughly settled the law applicable in just such circumstances. The assignments of error are dismissed.
Judgment affirmed.
