Ayres v. Pittsburgh, C., C. & St. L. Ry. Co.

• Decision Date: 06 January 1902
• Docket Number: 94
• Parties: Ayers v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Appellant
• Court: Pennsylvania Supreme Court

50 A. 958

201 Pa. 124

Ayers v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Appellant

No. 94

Supreme Court of Pennsylvania

January 6, 1902

Argued October 23, 1901

Appeal, No. 94, Oct. T., 1901, by defendant, from judgment of C.P. Washington Co., May T., 1901, No. 19, on verdict for plaintiff in case of John Ayers v. Pittsburg, Cincinnati Chicago & St. Louis Railway Company. Affirmed.

Trespass to recover damages for personal injuries.

Verdict and judgment for plaintiff for $4,166.66. Defendant appealed.

The facts are fully stated in the opinion of the Supreme Court.

Error assigned was in submitting the case to the jury.

A. M Todd, with him J. A. Wiley, for appellant. -- The case was for the court: Kraus v. Penna. R.R. Co., 139 Pa. 274; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 307; Greenwood v. Phila., etc., R.R. Co., 124 Pa. 577.

R. W. Irwin, with him John C. Bane, for appellee. -- The case was for the jury: Penna. R.R. Co. v. Werner, 89 Pa. 59; Penna. R.R. Co. v. Garvey, 108 Pa. 369; Philpott v. Penna. R.R. Co., 175 Pa. 570; Penna. R.R. Co. v. Coon, 111 Pa. 430; Fisher v. Monongahela Connecting R.R. Co., 131 Pa. 292; Phila. & Reading R.R. Co. v. Killips, 88 Pa. 405; Baltimore & Ohio R.R. Co. v. Colvin, 118 Pa. 230; Philadelphia & Reading R.R. Co. v. Boyer, 97 Pa. 91; Peck v. Michigan Central R.R. Co., 57 Michigan, 3; 23 N.W. 466; Dolan v. Delaware, etc., Canal Co., 71 N.Y. 285; Kissenger v. New York, etc., R.R. Co., 56 N.Y. 538.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

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. Ayers was about sixty-two years of 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 signalled 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 signalled Ayers to cross he at once started, and hurried across without stopping; when he got on the west-bound track the flagman signalled him to go back; at the same instant plaintiff saw a locomotive on the westbound track coming and about thirty or forty 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 negligence not to stop, look and listen after getting on.

Thus far we have discussed the law as if no flagman had been there; plaintiff had stopped in a place of safety although close to the track; he had used his own judgment and concluded that it was dangerous to cross because of the coming freight train; he waited until it had passed immediately the flagman on the opposite side signalled him twice to cross; he did so without stopping and was struck; the flagman was only about twenty-four feet from him and had the west-bound track in both directions in full view as far as it could be seen; the plaintiff's view was obstructed by the freight train to the east. It may be conceded that if the track had been as visible to him as to the flagman that he could not without negligence have disregarded his own sense of sight and have relied on the mistake or carelessness of the flagman; but plaintiff could not see a train and heard no warning; he knew the flagman was experienced and could see; why should he not cross? He could see no train; the flagman who could see and was placed there to see, in effect, said to him there was none. Under such circumstances we cannot say there was an absence of ordinary care in plaintiff relying on the sight of the flagman when because of the freight train his own could not avail him. The court left the question of contributory...