| Pa. | Jul 2, 1873
The opinion of the court was delivered, July 2d 1873, by
The evidence of the plaintiffs below showed a clear case of contributory negligence in the deceased. The crossing at which he met with the injury which resulted in his death, was a dangerous one, and as he was well acquainted with it, there was the greater reason that he should exercise the utmost care and caution, by stopping at the railroad before undertaking to pass over. It is very clear that if he had done so but for a few minutes the accident would not have happened. “This evidence,” said the learned judge in his charge, “is uncontradicted, that there was a level piece of ground, about ten feet wide, between the hill or bluff and the first track or siding on the approach to the track from the valley upon which the deceased was travelling.” It was his plain duty to have stopped at that place, and so the learned judge instructed the jury, but he qualified this instruction by adding, “if you find from the evidence that the approach of the train might have been seen or heard from there. This in fact left the question of negligence to the jury, upon a point not material. Indeed, the duty of stopping is more manifest when an approaching train cannot be seen or heard than where it can. If the view of a track is unobstructed, and no train is near or heard approaching, it might, perhaps, be asked, why stop ? In such a case there is no danger, of collision — none takes place — and the sooner the traveller is across the track the better. But the fact of collision shows the necessity there was of stopping; and therefore in every case of collision the rule must be an unbending one. If the traveller cannot s.ee the track by looking out, whether from fog or other cause, he should get out, and if necessary lead his horse and wagon. A prudent and careful man would always do this at such a place. In The Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, the plaintiff, a pedlar, in the depth of winter, was driving inside of his covered wTagon, with his head muffled up in a thick overcoat, and it appeared that a traveller passing in the direction he was going could not see up and down the track until within sixteen feet of it. Yet these circumstances were not allowed to form any excuse for his negligence in omitting to stop. There never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad
Judgment reversed.