Ayres v. Pittsburgh, C. C. & St. L. Ry. Co.
| Decision Date | 06 January 1902 |
| Citation | 50 A. 958,201 Pa. 124 |
| Parties | AYRES v. PITTSBURGH, C. C. & ST. L. RY. CO. |
| Court | Pennsylvania Supreme Court |
201 Pa. 124
AYRES
v.
PITTSBURGH, C. C. & ST. L. RY. CO.
Supreme Court of Pennsylvania.
Jan. 6, 1902.
Appeal from court of common pleas, Washington county.
Action by John Ayres against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for personal injuries received in a crossing accident. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.
A. M. Todd and J. A. Wiley, for appellant.
John C. Bane and R. W. Irwin, for appellee.
DEAN, J. The plaintiff, a day laborer in the village of Burgetstown, Washington county, left his home about 7 o'clock on the morning of August 18, 1900, to go to his place of work. To reach his destination he took his way along Washington, one of the principal streets of the village, which is crossed at right angles by the two tracks of the defendant railroad company. The street is a much traveled one both by those outside the town and those in it Ayres was about 62 yearsof age, physically active, with senses of sight and hearing unimpaired. The railroad company maintains an automatic electric signal bell at the crossing, which rings as soon as an approaching train reaches and opens the circuit 2,100 feet from the crossing, and continues to ring for about half a minute, or until the train has passed,—this as a warning to those who have reached or are approaching the crossing. In addition the company maintains a flagman at the crossing, whose duty it is to warn persons about to cross of the approach of a train, or to signal them that the crossing is clear, and can be used without danger. The tracks can be seen from the crossing both east and west, for a distance of 900 feet to the east and about 1,300 feet to the west. When plaintiff reached the railroad bed, a freight train running east was on the crossing. He stopped, and waited until it had passed. While so waiting, the flagman signaled him twice to cross. The flagman was on the side of the tracks opposite the plaintiff, whose vision to the east was obstructed by the receding freight train on the track next him, but the flagman's view of the track east was clear. When the flagman signaled Ayres to cross, he at once started, and hurried across without stopping. When he got on the west-bound track the flagman signaled him to go back. At the same instant plaintiff saw a locomotive on the east-bound track, coming, and about 30 or 40 feet from him. It occurred to him it was too late to get back, and he made the best effort he could to get across, but the locomotive struck and seriously injured him. The court left the questions of defendant's negligence and plaintiff's contributory negligence to the jury, who found for plaintiff, and we now have this appeal by defendant, alleging error in not giving binding instructions for defendant because of plaintiff's contributory negligence.
Leaving out of view the conduct of the flagman, the plaintiff was unquestionably, under all of our authorities, guilty of contributory negligence. He stopped, looked, and listened before he put his foot on the roadbed. He saw the freight train running east, and waited until it had passed. It then shut off his view to the east, and he could not see if a train were approaching from that direction. If he had assumed, because he did not see one, no train was approaching, and had attempted to cross and been struck, then he assumed the grave risk of a mere guess, and could not recover. While it is an unbending rule that a traveler must stop, look, and listen before crossing at grade the rails of a railroad, it has not been held that as an invariable rule he must stop, look, and listen when on the tracks or between them. It may be that ordinary care, under exceptional circumstances, would dictate that he should stop on the first track to look for an approaching train on the other, or that he should stop on the space between the two sets
of tracks; but no such rule applicable to all cases has ever been announced, nor could it, with sound reason, be adopted, because both on the tracks and between them are places of peril in greater or less degree. We have adopted the rule that, a traveler at a crossing having once stopped in a place of safety before going upon the road, and there looking and listening, and, neither seeing nor hearing danger, has then undertaken to cross, yet, nevertheless, the fact that he has once exercised care does not relieve him from the duty of exercising care while in the act of crossing. But what exactly he should then do to absolve himself from negligence must depend on the circumstances of the particular case. It is per se negligence to not stop, look, and listen before going on the tracks. It is not per se...
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