267 Pa. 41 | Pa. | 1920
Opinion by
At Smithton Station the defendant company has two main tracks, running parallel with the Youghiogheny river, and used by both express and accommodation trains. On the river side there is no shelter for passen-. gers, but on the opposite side of the tracks there is a station building in which the ticket office is located. Looking eastwardly, up the river, the tracks are curved, but the court below correctly states, in its opinion, that “one standing in front of the station building could see in that direction approximately 250 feet,____one standing at [the nearest main] track rail could see the tracks up the river for a distance of 350 feet, and [to one standing at], the nearest rail of the westbound track......it would be possible......to see an approaching train from that direction 450 feet.” There is no way of getting from the station to or from the westbound trains except by crossing the tracks at grade, defendant having constructed a slag platform in front of the station, across the tracks and along the river, forming thereby a reasonably level passageway which for many years, those approaching and leaving the trains had been invited to and did use. There was no employee stationed at this point to give notice of the arrival and departure of trains; but the law does not require that there should be either here or elsewhere, and though our reports show much loss of life has resulted for want thereof, the remedy must be sought in the legislature and not in the courts.
On the day of the accident plaintiff and her husband came to Smithton Station intending to take a westbound accommodation train. They purchased tickets and
It had been raining earlier in the day, but at this time there was nothing to obstruct decedent’s view. Apparently in the belief that the approaching train was the one he intended to take, and would slow down in order to stop at the station, thereby giving him time to cross in safety, he started across without looking at the train, or if looking without heeding its coming; and just as he lifted his foot to step on or over the near rail of the westbound track he was struck by the engine and received injuries from which he died.
It is admitted there was ample evidence the defendant company was negligent; and the only question before us is whether or not decedent was guilty of contributory negligence. The court below held the evidence did not so clearly establish it as to justify the binding instructions, requested by defendant, and hence submitted the case to the jury, which rendered a verdict for plaintiff, and judgment being entered thereon this appeal followed.
It is undoubtedly true decedent was not required to ,stop, look and listen before starting to cross the tracks
In the present instance, however, decedent does not appear to have exercised any care. He knew the place where he was walking was dangerous; he knew trains, both fast and slow and traveling in both directions, were using those tracks; and, as has been stated, he was obliged to exercise such care as the knowledge he had and the circumstances of his position called for an ordi
It is not necessary for us to determine the controversy of the parties as to whether Lebrenz v. The Pennsylvania R. R., 240 Pa. 495, or Lee v. Baltimore & Ohio R. R., 246 Pa. 566, is most nearly like the present case, or are compatible with each other or with our other decisions. The fact of being struck in the immediate act of stepping in front of a rapidly moving train did not appear in either of them, nor, so far as we have been advised, has recovery ever been allowed under such circumstances, where the party injured or killed was not about to enter or was leaving a «standing train, except Struble v. Pennsylvania Co., 226 Pa. 118, above noted, wherein, speaking by the present Chief Justice, we held plaintiff there could not be held guilty of contributory negligence as a matter of law, because his sight and hearing of the approaching train might have been and the jury found was obscured or prevented by another train emitting large quantities of smoke and making much noise. We would again so hold if this or any other real excuse appeared in the present case; but the only explanation here attempted is that decedent was under no obligation to look, because he probably thought the approaching
The judgment of the court below is reversed and judgment is here entered for defendant.