Penna. R. R. Co. v. Garvey

• Decision Date: 02 February 1885
• Citation: 108 Pa. 369
• Parties: Pennsylvania Railroad Company <I>versus</I> Garvey.
• Court: Pennsylvania Supreme Court

108 Pa. 369

Pennsylvania Railroad Company versus Garvey.

Supreme Court of Pennsylvania.

January 19, 1885.

February 2, 1885.

January 19th, 1885.

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

ERROR to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term, 1884, No. 281.

Wayne MacVeagh, for plaintiffs in error.—When a person sees a locomotive advancing, and has time to escape from it, it is negligence on his part to attempt to cross the track in front of the locomotive, and this irrespective of whether there is any warning given by ringing the bell or blowing the whistle: Davey v. London & S. W. R. R. Co., 12 L. R., Q. B. Div., 70; Carroll v. Pennsylvania R. R. Co., 12 W. N. C., 348. "It is in vain for a man to say that he looked and listened, if, in spite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive." Cases supra.

Nor does it make any difference that a person is actually on the railroad, before he sees the approaching locomotive, provided he has not reached the track upon which the locomotive is coming: Holland v. Chicago, M. & St. Paul R. R. Co., 18 Fed. Rep., 243. The uncontradicted testimony was that the train was in full view before the decedent stepped upon the track upon which it was approaching. He was from six to nine feet away from it. No train was approaching or within sight upon the track on which he was standing. He could have escaped altogether, either by remaining where he was or by stepping back.

C. F. Warwick (with whom were D. H. Ross and James Harland), for defendant in error.—In Holland v. Chicago, M. & St. Paul R. R. Co., 18 Fed. Rep., 243, a foot passenger, waiting only until a freight train had passed, stepped upon the next track and was struck by a train coming in the opposite direction, the approach of which was concealed from view by the first-mentioned train.

It is submitted that this case has no bearing upon that under consideration, as the circumstances were not the same. Even if they were, the question as to whether such conduct amounts to contributory negligence was one for the jury to determine, and was so decided by this court in Phila. & Read. R. R. v. Carr. 3 Out., 505, a case almost identical with that cited by the plaintiff in error.

The other case cited by plaintiff in error (Carroll v. Penna. R. R. Co., 12 W. N. C., 348), merely reiterates the well-known rule that a passenger upon reaching a railroad crossing must stop, look up and down, and listen, and that it is in vain for him to say that he conformed to that rule if at the time the approaching train was visible. In that case, too, it was shown that at the very moment the plaintiff looked the train was in view and was seen by other witnesses.

Now, in the case at bar it was clearly shown that when Mrs. Garvey, Mrs. Gallagher, and Michael Garvey reached the crossing they stopped, looked up and down the tracks, and neither heard nor saw any train approaching. Not a single witness claimed...