Moore v. The Philadelphia, Wilmington & Baltimore R. R. Co.

• Decision Date: 02 March 1885
• Citation: 108 Pa. 349
• Court: Pennsylvania Supreme Court
• Parties: Moore <I>versus</I> The Philadelphia, Wilmington & Baltimore Railroad Co.

108 Pa. 349

Moore versus The Philadelphia, Wilmington & Baltimore Railroad Co.

Supreme Court of Pennsylvania.

January 16, 1885.

March 2, 1885.

January 16th, 1885.

Before MERCUR, C.J., GORDON, PAXSON, TRUNKEY, and GREEN, JJ. STERRETT and CLARK, JJ. absent

ERROR to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term, 1884, No. 311.

Richard P. White, (with whom were Henry J. Scott and George H. Earle, Jr.), for plaintiff in error.—Even if it should be conceded that the plaintiff was guilty of negligence in taking the position which he did between the tracks, yet if the injury might have been avoided by the use of ordinary care and caution by the railroad company, they are liable for damages: Wharton on Negligence, 2d ed., §§ 388, 329 and 325; Reeves v. Railroad, 30 Pa. St., 461; Gray v. Scott, 66 Id., 347; Brown v. Lynn, 31 Id., 513; Railroad v. Ogier, 35 Id., 60; Helmrich v. Hart, 16 N. Y. Wk. Dig., 356. But plaintiff's conduct was not negligent: New Jersey etc., v. West., 32 N. J., 91; Company v. Stead, 95 U. S., 168; Railroad v. Troutman, 11 W. N. C., 455; and see Railroad v. Trainor, 33 Md., 543. All of the authorities cited apply with special force to accidents at public crossings, where a pedestrian has a right to go upon the tracks and where the companies are bound to exercise special care.

Gavin W. Hart, (with whom was David W. Sellers), for defendants in error.—A traveller approaching a railroad track is bound to use his eyes and ears so far as there is an opportunity, and where by the use of these organs danger may be avoided. Notwithstanding the neglect of the railroad company's servants to give signals, the omission of the plaintiff to use his senses to avoid danger is concurring negligence: Henze v. R. R., 71 Mo. 636; R. R. v. Houston, 5 Otto, 702.

Standing between two tracks of a railroad and not keeping watch for approaching trains constitutes contributory negligence: Snell v. R. R., 1 Com. Pleas Reporter, 24; Opinion of MORROW, P. J., (Bradford Co., Pa.); Anderson v. R. R. Co., 12 Phila., 369, (FINLETTER, J.) Where an engineer sees an adult upon the track, he is entitled to suppose that such person is in possession of his senses and will step off the track before the train reaches him: Louisville & N. R. R. Co., v. Cooper's Exr., 6 Am. & Eng. R. R. Cas., 5; Herring v. W. & R. R. Co., 10 Ired. (N. C.) 402; Manly v. Wilmington & W. R., 74 N. C., 655.

Mr. Justice PAXSON delivered the opinion of the court, March 2d, 1885.

The plaintiff was nonsuited below. He was injured by an engine of the defendant company while attempting to cross their track at a public crossing. When he came to said crossing he saw a train passing upon one of the tracks, of which there were several. He looked up and down the road and seeing no other train approaching, he stepped upon the road and stood between the tracks waiting for the train to pass. While in this position an engine came along and struck him. He had a clear view of the track for half a mile in the direction from which the engine came, and could have seen it had he looked at the right time. His attention was doubtless given to the passing train, and as the engine was not on the track when he stepped thereon, he probably expected to cross before another train or engine should pass. This was unfortunately a mistake and resulted in his injury. He says in his testimony: "I got hit by standing too near the track, I guess."

At railroad crossings there are reciprocal duties. Both the company and the public have a right of way; neither is exclusive. It is the duty of each to so exercise their respective rights as not to interfere unnecessarily with the rights of the other. A crossing is a known place of danger. The engineer of a train when he approaches it has a right to expect that persons may be there, hence it is his duty to approach it at a moderate rate of speed; the citizen when he attempts to cross knows that a train may come at any moment. It is his plain duty to look out for it and avoid it if possible. The train is not obliged to stop: he is.

There was no evidence to show that the engine approached at a high rate of speed. It was urged, however, that the engineer might and ought to have seen the plaintiff and that his failure to stop or at least blow the whistle or ring the bell was negligence. The plaintiff says "there was no whistle blown or bell rung." There appears to have been no other evidence upon this point. We must assume that he did not hear it for if he had he would not have waited to be run down. It is equally probable, however, that his attention was so taken up by the passing train that he did not notice either whistle or bell. We are asked to assume that the engineer saw him because it was his duty to have done so, and there was nothing to have prevented it. If we are to depend upon presumptions we must apply them to both sides. If it was the duty of the engineer to have seen the plaintiff standing upon the track close to the passing train it was also the duty of the...