Marland v. Railroad Co.

• Decision Date: 07 January 1889
• Parties: ALFRED MARLAND v. PITTSB. & L. E. R. CO. [HENRY MARLAND v. PITTSB. & L. E. R. CO.]
• Court: Pennsylvania Supreme Court

123 Pa. 487

ALFRED MARLAND v. PITTSB. & L. E. R. CO.

[HENRY MARLAND v. PITTSB. & L. E. R. CO.]

Supreme Court of Pennsylvania.

Argued November 5, 1888.

Decided January 7, 1889.

Before GORDON, C. J., PAXSON, GREEN, CLARK, WILLIAMS and HAND, JJ.; STERRETT, J., absent.

ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

Nos. 213, 214 October Term 1888, Sup. Ct.; court below, Nos. 631, 632 September Term 1887, C. P. No. 1.

COPYRIGHT MATERIAL OMITTED

Mr. Clarence Burleigh (with him Mr. S. A. McClung), for the plaintiffs in error:

1. There was ample evidence that the defendant company for years prior to this accident had permitted whoever chose to do so to cross its tracks at the mouth of Belle avenue; that whilst using this crossing Alfred Marland was injured, and that it was a want of reasonable care which caused the accident. In Taylor v. Del. & H. Canal Co., 113 Pa. 162, this court, after citing numerous cases, used the following language, Mr. Justice STERRETT delivering the opinion: "The principle clearly settled by the foregoing and many other cases that might be cited is, that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing, and whether, in a given case, such reasonable care has been exercised or not, is ordinarily a question for the jury under all the evidence." In view of the case referred to and the authorities there collected, there certainly was a case for the jury.

Mr. James H. Reed (with him Mr. Phil. C. Knox), for the defendant in error:

1. "It is in vain for one to say that he looked and listened, if in despite of what his eyes and ears must have told him, he walked directly in front of a locomotive:" Carroll v. Penn. R. Co., 12 W. N. 348. Lefler's testimony shows further that Marland must have come upon the track and stopped while the freight train was yet passing, and under the rule in Moore v. Penn. R. Co., 99 Pa. 304, he was guilty of contributory negligence.

2. Moreover, the testimony showed that not only was there no defined crossing at the place of the accident, but there was no habit of crossing at any certain point. Both Taylor v. Del. & H. Canal Co., 113 Pa. 162, and Phila. & R. R. Co. v. Troutman, 11 W. N. 453, cited by the court in the first case, were decided upon the fact that there was a common and well known foot path across the track, well known to the railroad company to be used by persons crossing, and that the company was bound to anticipate that people might avail themselves of the license. But in the present case, identical almost with Penn. R. Co. v. Lewis, 79 Pa. 33, the court below was correct in withdrawing from the jury all evidence that the public were accustomed to use the track in the neighborhood of the accident.

No. 213.

OPINIONS, MR. JUSTICE GREEN:

On the trial of this case the plaintiff testified that he stepped upon the track, and was instantly struck and injured. It is true he said he looked up and down the track and saw nothing; but it is necessarily true, also, that if he made use of his eyesight he must have seen the approaching train. He could not possibly look along the track in the direction of the approaching train and fail to see it, since his presence on the track and the collision were simultaneous. We have pronounced...