161 Pa. 28 | Pa. | 1894
Opinion by
The defendant’s railroad, with a general direction east and west, crosses diagonally at grade Tenth and Eleventh streets in the city of Philadelphia with four tracks, the two outer tracks being sidings and the two inner ones for east and west bound trains. At the Tenth street crossing there are two plank sidewalks over the railroad, one on the east, and the other on the west side of the street, for foot travelers, leaving the space between for vehicles.
. For a long time, the railroad company had maintained safety gates on each side of the crossing, and had also employed a watchman, to guard against accidents. Between twelve and one o’clock in the daytime of the 17th of December, 1890, Robert Matthews, his brother Daniel, and Augustus Musick, all three of whom were in the service of the Penn Globe Gasoline Company, on Eleventh street, quit work and started together for their homes. They walked down Eleventh until they struck the railroad, then on the roadbed in the space between the east siding and the outbound track until the3r reached the first plank walk on the west side of the Tenth
We think we have stated the facts disclosed by plaintiff’s evidence, in the view most favorable to her, as it is our duty to do where, as in this ease, a compulsory nonsuit was entered on plaintiff’s own evidence.
From the refusal of the learned judge who tried the cause to take off the nonsuit, this appeal is taken. Were the facts for the consideration of the jury ? For that is the only question raised on this appeal.
The deceased stopped, looked and listened for a train while on the plank walk on the west side of Tenth street; he then crossed the intervening street to the walk on the east side, and then, in a couple of steps from where he turned in front of the standing train, was struck by the moving train and killed. It is alleged no warning was given him, while on the crossing, of the coming locomotive; the gates were not lowered, the watchman waved no flag of danger. But was defendant, in any reasonable sense of the word, a traveler on the street crossing? From the time he set foot on the railroad at Eleventh street .until he reached Tenth street, he was a foot traveler on the
The cases cited by the learned counsel for appellant are not in point when applied to the facts here. In Railroad Company v. Killips, 88 Pa. 405, Chief Justice Sterrett, in delivering the opinion of the court, says : “ The ground of complaint is, that the keeper was withdrawn at 7 o’clock, and the gate left in such position as to mislead the traveling public, — invite them to cross and lure them into danger, — and that the deceased was thus misled and injured.” In Railroad Company v. Frantz, 127 Pa. 297, Justice Mitchell says: “ But while the fact that the gates were raised, is no excuse for the failure of the plaintiff to stop, look and listen, yet on the other hand it is some evidence of negligence on the part of defendant. Its tendency is certainly to give the approaching traveler the impression that the crossing is safe, and thereby to blunt the edge of his caution.” In Stapley v. London Railway Co., 1 Exc. Cases, 21, Channel, B., said : “ The carriage gate being open, and no gate-keeper present, a foot passenger was invited by that state of things to pass across the line, and the conduct of the company was therefore, we think, evidence of negligence to go to the jury.” These and many other cases hold, that open gates, which should be closed in case of danger, are an invitation to the traveler on the highway to cross, and while this fact does not relieve him from the duty of exercising care, it is a fact for the consideration of the jury, in determining whether he exercised care according to the circumstances.
But where, as here, the person injured was not a traveler on the public highway crossing the railroad, but reached the place-of danger from the railroad, the rule laid down in these cases can have no application. Coming from the direction he did, he had no right to presume the company knew he was there for the purpose of crossing, and the duty of greater care and vigilance on his part was imperative.
The judgment is affirmed, and appeal dismissed at costs of ippellant.