202 Pa. 107 | Pa. | 1902
Lead Opinion
Opinion by
At the close of plaintiff’s testimony the learned trial judge directed a verdict for the defendant. He could not have avoided doing so in the light of the clear contributory negligence of the appellant. The collision occurred in the country, on the Old York road, upon which the tracks of the appellee are laid.
When the plaintiff stopped within the gateway, and got out on the swingletree to look for an approaching car, because he could not see from his seat in the closely curtained wagon, he exercised proper care; but his misfortune is that he was careful but for an instant, when he should have continued to be watchful until the track, the real point of danger, was reached. If he had continued to look, he could have seen the car, just as those within it saw his team 100 feet in front of it, when the horse was on, or approaching the track. It is not conceivable, that the plaintiff could not have avoided the collision if he had continued to look. Instead of doing so, after he had first looked, and been careful before starting his horse toward the track, he climbed back into his seat, from which he could not see, and drove blindly on, so far as any view to the right or left of him was concerned. The care that he exercised when he got out on the swingletree and looked, counts for nothing, for, when he dropped back into his seat and started, with thirty-five feet intervening between him and the track, he might as well have been blindfolded in an open wagon, for all the opportunity he then had of looking out on either side. Had
It is urged that the rule, that one about to cross a street railway track must continue to look until the track is reached, relates only to electric roads in cities, and does not apply to the crossing of such railway tracks in the country, where the views are much more extended, cars pass less frequently, and the obstructions to travel on town streets are not encountered. The answer to this is, that care must always be exercised. The degree required may vary, but want of care under the circumstances is always negligence. It is as much one’s duty to look out for danger in the country as it is in the town. Trolley cars run into wagons carelessly driven, not only on the streets of a city, but on turnpikes and rural roads as well. We have never said that the duty of continuing to look until the trolley or street railway track is reached is not binding upon those driving teams in the country. The same degree of watchfulness may not be required there as on crowded city streets, but it will never be held that there need be no care at all in the country, as there was not in this case after the plaintiff climbed back from the swingletree into his seat in the closed wagon, where he could not see, and started for the danger which he would have avoided, if he had looked.
Judgment affirmed.
Dissenting Opinion
dissenting:
On November 19, 1899, a rainy, gloomy day, Robert T. Keenan, the plaintiff, was driving a covered delivery wagon, drawn by one horse, out of a private lane or driveway which is at right angles with, and leads to, the Old York road in a rural
Upon these facts the trial court withdrew the case from the jury, holding as a matter of law that the plaintiff was guilty of negligence. It is contended that the plaintiff’s failure to continue to look for an approaching car until he arrived at the track, was the cause of the collision resulting in his injuries. But that contention is not supported by the facts disclosed by the evidence. The plaintiff “ stopped, looked and listened ” at a proper place — when his horse was within twenty-five feet of the track — and where he could see an approaching car for a distance of over one hundred yards. No car was in sight and he had no reason to believe that one was approaching. Up to this point it must be conceded that the plaintiff had performed his whole duty. He then attempted to cross the track and in so doing permitted his horse to walk. What vigilance in looking for a car was required of him ? Should he have alighted
It may be observed in conclusion that it was a question for the jury whether the plaintiff stopped at a proper place to look for the approaching car, and if he did, and saw none, whether he was justified in proceeding to cross the track in the manner and under the circumstances disclosed by the evidence. For the court below to determine this as a matter of law was to invade the exclusive province of the jury, recognized time and again by this court.
I would reverse the judgment and send the case to a jury.