Buzby v. Philadelphia Traction Co.

• Decision Date: 27 May 1889
• Docket Number: 182
• Citation: 17 A. 895,126 Pa. 559
• Parties: JOSEPH A. BUZBY v. PHILADELPHIA TRACTION CO
• Court: Pennsylvania Supreme Court

17 A. 895

126 Pa. 559

JOSEPH A. BUZBY v. PHILADELPHIA TRACTION CO

No. 182

Supreme Court of Pennsylvania

May 27, 1889

Argued April 3, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 182 January Term 1889, Sup. Ct.; court below, No. 97 September Term 1886, C.P. No. 2.

Joseph A. Buzby brought case against the Philadelphia Traction Co. to recover damages for personal injuries charged to the negligence of the defendant company's employees.

At the trial on October 16, 1888, the facts shown were as follows:

On September 13, 1886, about 8 o'clock in the evening, the plaintiff took one of the defendant's cars passing west on Market street to go to the corner of Market and Thirty-seventh, his destination being a point south of Market street, at that corner. The defendant's line is double tracked on said street, the tracks being about four and one half feet apart, reduced nearly two feet by the overhang of the cars. The back platform of the car was inclosed on the side toward the inside track, and open on the side toward the pavement. When the car stopped at the Thirty-seventh street crossing, the plaintiff alighted, and without waiting for the car to move on, walked around the rear end of it, and attempted to cross the south track, when he was struck by a car going east and seriously injured.

The plaintiff testified that he listened for the sound of an approaching car but heard none and that he looked straight ahead of him only, while there was testimony of other witnesses that had the plaintiff looked he could have seen the approaching car.

Upon the conclusion of the plaintiff's evidence, the court MITCHELL, J., entered a nonsuit, saying:

"While the well settled rule of law, that a person crossing a railroad track must stop, look and listen, does not apply to city passenger railways, the rule is perfectly plain that a person must look where he is going. It appears from the evidence that the plaintiff stepped off the defendant's car without looking where he was going, and therefore I grant the motion for a nonsuit, and discharge the jury from the consideration of the case."

A motion that the judgment of nonsuit be vacated having been refused, the plaintiff took this writ, assigning as error the order entering judgment of nonsuit, and the refusal of the court to vacate said judgment.

Judgment affirmed.

Mr. Samuel Gustine Thompson (with him Mr. Andrew MacBride), for the plaintiff in error.

Counsel cited: Beach on Cont. Neg., 301; Penna. R. Co. v. Werner, 89 Pa. 59; Phil. & T.R. Co. v. Hagan, 47 Pa. 247; Schum v. Penn. R. Co., 107 Pa. 8; Penn. R. Co. v. Peters, 116 Pa. 215; McWilliams v. Keim, 22 W.N. 372; Schmidt v. McGill, 120 Pa. 412.

Mr. David W. Sellers (with him Mr. Gavin W. Hart), for the defendant in error.

Counsel cited: Carroll v. Penn. R. Co., 12 W.N. 348; Read. etc. R. Co. v. Ritchie, 102 Pa. 425; Moore v. Railroad Co., 108 Pa. 349; Penn. R. Co. v. Bell, 122 Pa. 58; Marland v. Railroad Co., 123 Pa. 487; Morgan v. Railroad Co., 23 W.N. 189.

Before STERRETT, GREEN, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

JUSTICE MITCHELL:

The plaintiff had been carried to his destination, had alighted from the car in a place of safety, and his relation to the defendant as a passenger had ceased. The case therefore is the ordinary one of a traveler about to cross a public street, on which are two sets of railroad tracks, besides the usual space for wagons, etc., between the sidewalks.

Counsel for plaintiff in error seem to lay much stress on the argument that the case is not within the imperative rule for railroad crossings, that the traveler must stop, look, and listen. But no such test was applied in the court below to the plaintiff's conduct. On the contrary, it was expressly disclaimed, though the counsel for defendant called...