Gerety v. Philadelphia, Wil. & Balt. Railroad Co.
| Decision Date | 21 February 1876 |
| Court | Pennsylvania Supreme Court |
| Parties | Gerety <I>versus</I> Philadelphia, Wilmington and Baltimore Railroad Co. |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the District Court of Philadelphia: Of January Term 1874, No. 360.
D. W. Sellers, for plaintiff in error.—It was the duty of the engineer to approach the crossing at a moderate speed and to give warning: Cleveland & Pitts. Railroad Company v. Rowan, 16 P. F. Smith 396. The principle as to contributory negligence is whether the deceased used proper precautions: Pennsylvania Railroad Company v. Weber, 22 P. F. Smith 27. It might have been more dangerous to stop than to go on; when deceased saw the train he might have been choosing between two perils, or the reins in his fright may have dropped from his hands; all was for the jury: Pennsylvania Railroad Company v. Ogier, 11 Casey 72; Kay v. Pennsylvania Railroad Company, 15 P. F. Smith 269; Howard Express Company v. Wile, 14 Id. 201.
T. Hart, Jr., and J. E. Gowen, for defendants in error.—An engineer is not necessarily negligent in omitting to whistle at a crossing in an open country where any one can see the trains: Wharton on Negligence, sect. 804, 386; Telfer v. Northern Railroad Company, 30 New Jersey 188. The defendant was bound to stop and look for the approaching train: Pennsylvania Railroad Company v. Beale, 23 P. F. Smith 504; Pennsylvania Railroad Company v. Ackerman, 24 Id. 265. The standard of this duty being fixed and the same under all circumstances is to be declared so by the court: West Chester Railroad Company v. McElwee, 17 P. F. Smith 311; North Pennsylvania Railroad Company v. Heileman, 13 Wright 60.
Judgment was entered in the Supreme Court, February 21st 1876, PER CURIAM.
The evidence in this case discloses either gross carelessness or recklessness, in the approach of Peter Gerety to the railroad and his attempt to cross it in front of the coming train. He walked his horses slowly up the gentle assent to the railroad, looking at them and turning to look neither to the right nor left. The track lay here on an embankment of about twelve feet in height, and the train could have been seen approaching for many hundred feet. The engineer, called by the plaintiff, testifies he saw the man and wagon about ninety feet off, he was going up slowly, and standing up in his wagon behind the seat. He came within a few...
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