252 Pa. 1 | Pa. | 1916
Opinion by
On January 31, 1912, the plaintiff was severely injured in a collision between a trolley car, upon which he was acting as motorman, and a locomotive hauling a train on the defendant’s railroad. He sued in trespass and recovered a verdict; judgment was entered thereon, and the defendant has appealed.
At the place where the accident happened the railroad consisted of three main tracks, with a siding running from the first of these at a point about 60 or 70 feet to the west of the street crossing. Safety gates were maintained by the defendant company at this crossing, and these were operated from a tower that stood 10 or 12 feet above the level of the street, from which the watchman in charge could see all approaching trains. The street railway company also maintained an appliance to prevent its cars from going over the railroad until a safety switch was turned by the trolley conductor, who usually crossed to the opposite side of the tracks for that purpose; but on the day of the accident this appliance was out of repair and the street railway company had a special man stationed there to manage it. There were four passengers in the trolley car, and the plaintiff was standing in the usual place for motormen, on the front platform, which was entirely enclosed. He brought his
When the plaintiff stopped before the safety gates, owing to the train on the siding, he could see ahead only 70 feet in the direction from which the locomotive that subsequently collided with him was then advancing, although there does not appear to have been any sufficient reason why the conductor should not have observed the impending danger before he signalled the plaintiff to
It appears that, when the plaintiff approached the railroad, he brought his car to a standstill at the usual stopping place, and that he was careful before actually attempting to cross; in other words, he “stopped, looked and listened.” It further appears that he continued to exercise due care while in.the act of making the crossing, and there was nothing in the evidence sufficient to show that he either expressly or impliedly constituted the conductor his agent for the purpose of making observations, or especially entrusted his safety to the latter’s care; in fact, it does not even appear that it was usual or customary for the conductor to keep a lookout ahead of the car for the approach of trains. No authority in Pennsylvania has been called to our attention which, on its facts, controls the present case; but two cases from other jurisdictions have been cited which are somewhat similar. First, in Harper v. Delaware, Lack. & Western R. R. Co., 22 Hun. App. Div. 273, 276, on facts almost precisely like those at bar, the appellate division of the New York Supreme Court ruled: “If the conductor was negligent, it does not necessarily follow that de
No more could the trial court have held, as a matter of laAV, that the plaintiff himself was guilty of contributory negligence. When we consider all the facts in this case, it is clear that, even though, where the plaintiff stopped to make his original observation, the prospect to the west was obscured by a train standing on the siding, this circumstance was not sufficient to require a motorman to descend from his car and advance to a point where he could get a clear view, as the defendant contends it was, under our decisions, the plaintiff’s duty to do before attempting the crossing. In Kinter v. Penna. R. R. Co., 204 Pa. 497, relied upon by appellant, we ruled, following the logic of Penna. R. R. Co. v. Beale,
To return to the facts before us, we have at no time held that, when a driver, much less a motorman in control of a trolley car, approaches a railroad crossing where the safety gates are down, making as careful observations as he can according to the circumstances, and a locomotive passes, whereupon the safety gates are raised, it is his duty to descend from his vehicle and make further observations before crossing the tracks. On the contrary, we have repeatedly said that while open safety gates do not relieve one about to cross a railroad from the duty of exercising due care, yet the lifting of the gates is an intimation that no train is approaching and an invitation to make the crossing; further, that, where gates are opened at a time when a train is approaching, it is not only evidence of negligence on the part of the railroad company, but is a fact for the consideration of the jury in determining whether the injured plaintiff exercised proper care according to the circumstances: McCarthy v. Philadelphia & Reading Ry. Co., 211 Pa. 193, 201; Messinger v. Penna. R. R. Co., 215 Pa. 497; Roberts v. Del. & Hudson Canal Co., 177 Pa. 183, 190; Fennell v. Harris, et al., 184 Pa. 578, 581-2; McGuigan v. Penna. R. R. Co., 224 Pa. 594. In the present case, when we take into consideration the fact that the plaintiff was a motorman on an enclosed platform of a trolley car, that the safety gates were actually down when he came to the crossing, that after a locomotive had passed, which apparently was the only impending danger, the gates were opened, that the plaintiff took such observations as he could before starting and continued to exercise care while attempting to cross the railroad, entirely irrespective of the signalling by the conductor, it is apparent it could not be ruled as a matter of law that the plaintiff was guilty of negligence in.failing to descend from his car, or in any other material respect.
The trial judge charged the jury with his usual skill and ability; while he told them that the alleged negli
The assignments of error are overruled, and judgment is affirmed.