Myers v. B. & O. R. R.

• Decision Date: 13 July 1892
• Court: Pennsylvania Supreme Court
• Parties: Myers <I>v.</I> B. & O. R. R., Appellant.

150 Pa. 386

Myers

v. B. & O. R. R., Appellant.

Supreme Court of Pennsylvania.

April 5, 1892.

July 13, 1892.

Argued April 5, 1892.

Appeal, No. 219, Jan. T., 1892, by defendant from judgment of C. P. No. 3, Philadelphia Co., June T., 1891, No. 866, on verdict for plaintiff.

Before PAXSON, C. J., STERRETT, WILLIAMS, McCOLLUM and HEYDRICK, JJ.

John M. Vanderslice, Thad. L. Vanderslice with him, for appellant.—The uncontradicted evidence shows that plaintiff could have seen the train for a mile if he had looked. In the face of this testimony it is vain to say he looked and listened: Carroll v. R. R., 12 W. N. 348; Moore v. R. R., 108 Pa. 349; R. R. v. Bell, 122 Pa. 58; Blight v. R. R., 143 Pa. 10; Hauser v. R. R., 1 Adv. R. 355. The law requires one to listen as well as look: R. R. v. Mooney, 126 Pa. 252.

Samuel Peltz, for appellee.—Whether a traveler stopped at a suitable place cannot be ruled as a matter of law but is for the jury: R. R. v. Noar, 3 Penny. 443. The presumption is he observed all the precautions prescribed by the law: Pa. R. R. v. Weber, 76 Pa. 157; Longenecker v. R. R., 105 Pa. 328; Quigley v. D. & H. Canal Co., 142 Pa. 388; Bradwell v. R. R., 139 Pa. 413; L. S. & M. Ry. v. Franz, 24 W. N. 321.

In Carroll v. R. R., 12 W. N. 384; s. c. 2 Penny. 159; plaintiff did not stop. In Moore v. R. R., 108 Pa. 349, he got between the tracks and waited. In R. R. v. Bell, 122 Pa. 58, he was intoxicated. In Blight v. R. R., 143 Pa. 10, there were two travelers and one escaped. In Hauser v. R. R., 29 W. N. 471, plaintiff ran directly into the train. There are two classes of cases as above indicated and our case belongs to the first class above mentioned.

OPINION BY MR. JUSTICE WILLIAMS, July 13, 1892.

The rule is now well settled in this state that one approaching a railroad crossing upon a public highway must stop, look and listen at a convenient distance from the railroad track, before venturing to go upon it. This rule is imperative. If one disregards it and suffers injury in the attempt to cross, the presumption of negligence on his part is a presumption juris et de jure. Having contributed to his own injury he is remediless. If the traveler complies with the rule, and can see or hear a moving train approaching the crossing, what must he do? It follows logically from the rule now so firmly established that he must wait for the approaching train to pass. If he does not do so he crosses at his peril. He has notice that the train is coming, he knows, he is bound to know, that trains are moved at a high rate of speed reaching and sometimes exceeding a mile in a minute. He is without exact knowledge of the actual rate at which the train he sees or hears is coming, and the only safe thing he can do is to wait. If he does not wait, but risks his safety on his own calculation of the chances that he will be able to cross the track before the train can reach him, he must not complain of the consequences if his calculation fails and disaster overtakes him. It will not do to say that a jury may review his calculation and pass upon its reasonableness. That would destroy the rule and leave the question of contributory negligence to depend upon a measure that would change with every change of jurors, and with the exigencies of every case. Seeing or hearing the approaching train the traveler is warned of his danger. To wait is safe. It is the only course he can take that is free from danger. If he goes on in the face of a known danger, without an imperious necessity compelling it, negligence is a presumption of law.

In this case we encounter another question. The plaintiff says he complied with the rule. At about fifteen or twenty feet from the track he says he stopped his team, looked each way along the railroad, and listened; and that he neither saw nor heard a train approaching. He then drove on and while upon the track was struck and injured. If this is true he did all the rule requires and all that was possible to be done. Is it true? This question the court below left to the jury, and they promptly found that it was true. The defendant asked the court to say as a matter of law that upon the facts of this case it was not true. Our question is whether this instruction should have been given. The facts as shown by the plaintiff's case are these: (a) The track was straight and smooth and unobstructed, so that from the crossing, or the point where the plaintiff says he stopped to look and listen, it could be seen for more than half a mile in either direction. (b) The speed of the train was from ten to twelve miles per hour. (c) The engine was running backwards with a large...