192 Pa. 8 | Pa. | 1899
Opinion by
The two witnesses who saw the accident which caused the death of the plaintiff’s husband gave widely different accounts of the occurrence. One of them testified that the deceased, when within two feet of the track, stopped and looked both ways, and then went on and was struck by the engine when about the middle of the track. The other witness testified that when the engine was 150 feet from the crossing he saw the deceased approaching the track, and that he went on without stopping or looking, and stepped in front of the engine. There was a curve in the track a short distance from the crossing, and an embankment at its side. The rate of speed at which the plaintiff’s witnesses testified it was running would have brought the engine to the crossing within a few seconds of the time when it was first visible to a person standing within two feet of the track. This testimony furnished ground for an inference that the engine might have come into view after the deceased had looked, and during the seconds when in the dark, without notice by bell or whistle of the approach of the train, he was picking his way across the track. The case presented by the plaintiff’s testimony was not one in which it could be said by the court that the presumption that the deceased stopped, looked and listened was effectually rebutted by the facts established, or that having seen or heard he went on heedless of an obvious danger. The case was necessarily for the jury, and no exception was taken to the general charge, which was clear and adequate.
The assignments relate to the answers to the points for charge. It appeared that at the place of the accident the tracks of the Philadelphia & Erie Railroad are nearly parallel to those of the defendant’s road, and about eighty feet distant from them, and that a train on that road was passing at the time. The
The legal propositions presented by these points were fairly raised by the testimony, and they should have been affirmed without qualification. Davidson v. R. R. Co., 171 Pa. 522, and 179 Pa. 227, relied on by the appellee, does not sustain these answers. In that case it was said, in affirmance of the principles of the decisions in McNeal v. Ry. Co., 131 Pa. 184, Ellis v. R. R. Co., 138 Pa. 506, and other cases cited in the opinion, that the mere fact that the plaintiff drove on a railroad track in front of a moving train did not establish his contributory negligence, and that the facts must be clear of doubt or uncertainty to justify the court in treating the question of contributory negligence as one of law. It had before been said by our Brother Mitchell, in McNeal v. Ry. Co., supra, that while the rule laid down in Carroll v. R. R. Co., 12 W. N. 348, and the decisions which have followed it, that a plaintiff cannot recover if, in spite of what his senses must teach him if he uses them, he steps in front of a moving train, is sound on principle and will not be relaxed or pared down by exceptions, it is a rule which in its nature is applicable only to clear cases.
In the case before us the noise of the train on the Philadelphia & Erie Railroad may have prevented the deceased from hearing the train which was approaching the crossing on the defendant’s road. Whether he received warning by the sense of hearing was a fact to be determined by the jury, and the fact that there were two trains was one of the circumstances to be considered. But there was nothing to interfere with or confuse his vision. If he did not look, or if he saw the train and went on, he was negligent. The points leave no ground for the assumption that the trains may have come into view after he looked. The case presented by them is that the train was plainly visible from the point the deceased occupied when it became his duty to stop, look and listen. Seeing a train on the other road did not excuse him from looking for one on the road he was about to cross. It was this road that he was bound to watch. If he did not look because his attention was attracted by the other train, he was nevertheless negligent.
The qualifications to the answers to the third and fourth points introduce an element of uncertainty which would go far toward abrogating a wise and well established rule. The hypothetical case presented by the second point is that the deceased saw or heard an approaching tram. He may have heard a train
The fourth and fifth assignments of error are sustained, and the judgment is reversed with a venire facias de novo.