215 Pa. 497 | Pa. | 1906
Opinion by
We agree with the statement of the rule of law set out in the argument of the learned counsel for appellant wherein it is said to be the absolute, imperative and unbending duty of a person about to cross the tracks of a railroad at grade, to stop, look and listen. It must be conceded also that it is not a compliance with this rule to stop at a point where the traveler cannot see, and it is his duty to continue to use care in approaching and even crossing the tracks, and in some instances a performance of his duty may require the driver to get out of his wagon and go ahead of his horses to look and listen. Wre are not convinced, however, that under the facts of the case at bar there was such neglect of duty in these respects as would justify a court in holding as a question of law that plaintiff was guilty of contributory negligence. The most favorable view that can be taken of this contention is that whether the plaintiff stopped at a proper place and exercised due care in approaching and crossing the tracks after he had stopped, looked and listened, was a question of fact to be determined by the jury-
On the question of whether the plaintiff observed the rule the learned trial judge in his charge to the jury said : “ There was evidence that the plaintiff did stop, look and listen at a certain point. There is considerable evidence that this is the
Under these circumstauces, it was clearly a question for the jury to say whether Messinger stopped at the proper place, whether he could see at that place, and whether there was a better place at which he should have stopped in order to comply with the rule. It is earnestly contended, however, that under the facte of this case, it was the duty of the driver or plaintiff to get out of the wagon and go ahead to look and listen for approaching trains. Kinter v. Railroad Company, 204 Pa. 497, is relied on to support this position. The rule of that case is not applicable to the facts of the present case, as will appear from Hanna v. Railway Company, 213 Pa. 157, wherein it was said, “ In that case it was held to be the duty of Kinter to stop, look and listen at a place where he could see the approaching train. The evidence showed that he did not stop at such a point, and it being conceded that he could not see where he did stop, it was for the court to say that he had not observed the rule requiring him to look.” In the present case the weight of the testimony shows that Messinger did stop at the usual and customary place, that he had an unobstructed view of the tracks to the tower about eighty feet east of the crossing, and the testimony is conflicting as to whether there was any better place at which he could have stopped. The contention that there was a point near the safety gates from which he could see a point on the railroad about 160 feet east
The peculiar facts of this case are the best answer to the "contention of the learned counsel for the appellant in so far as he ■ asks the court to say as a question of law that there can be no recovery. The tracks of three railroad companies cross the avenue at'the place where the accident occurred. The first .was the track of the W. N. Y. & P. R. R. Co., which was located within nine feet of the south safety gate, from which direction Messinger approached. The next two tracks were those of the Erie Railroad, the next two tracks of the Pennsylvania Railroad, and' then the two interchangeable switches used "in common by all these roads. The accident occurred on ■the second track of the Pennsylvania Railroad and the fifth on the crossing. In other words, having been invited by -the raised" safety gates to cross over, and there being testimony ■tending to show that appellee exercised proper care in approaching the crossing, and being on the fifth track before the «collision occurred, and having testified that he continued to use care while on the- crossing, it was clearly a case for the jury. •In the recent case of Beach v. Railroad Company, 212 Pa. 567 Mr. Justice Fell stated the rule applicable to the facts of the •present case wherein he said: “ Stopping is opposed to the idea ■of negligence, and unless notwithstanding the stop the - whole 'evidence shows negligence so clear that no other inference . can
After a careful examination of the testimony, the charge of the trial judge and the arguments in the case, we are convinced that this was a case for the jury, and that no error has been committed in submitting it for their determination.
Assignments of error overruled and judgment affirmed.