Philadelphia & Reading R. R. Co. v. Carr

• Decision Date: 20 February 1882
• Citation: 99 Pa. 505
• Parties: Philadelphia and Reading R. R. Co. <I>versus</I> Carr.
• Court: Pennsylvania Supreme Court

99 Pa. 505

Philadelphia and Reading R. R. Co. versus Carr.

Supreme Court of Pennsylvania.

January 31, 1882.

February 20, 1882.

January 31st 1882.

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

ERROR to the Court of Common Pleas No. 2, of Philadelphia county: Of July Term 1881, No. 117.

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Thomas Hart, Jr., for the plaintiff in error.—The duty of one about to cross a railroad, to stop, look and listen, is admitted. In the case of a double-track railroad, it is a necessary inference from the rule that if a foot traveler stops for a train to pass in one direction, he must not only look again in both directions, but he must wait until the train just passed has proceeded a sufficient distance not to block his vision of the other track; otherwise, looking is of no use. It has been decided that a permanent obstacle, obstructing a view of the track will not relieve one about to cross from the duty of looking at a place where he can see up or down the track: Central R. R. Co. of New Jersey v. Feller, 3 Norris 226; R. R. Co. v. Beale, 23 P. F. Smith 504.

There is no difference in principle between a permanent obstacle to the view and a moving one, so long as the latter continues to be an obstacle. In the one case, the obstacle is one of place, in the other, it is one of time; and as in the one, the passenger must look at a place where there is no obstruction, so in the other, he must wait until the moving and temporary obstruction be removed: Werner v. R. R. Co., 8 Norris 59; Penna. R. R. Co. v. Fortney, 9 Norris 323.

Daniel Dougherty, for the defendant in error.—The plaintiff below performed her whole duty. The court cannot say, as a matter of law, that after waiting for one train to pass, and after then looking in both directions, she was bound to wait an indefinite time, because there might be a train coming in the opposite direction at an uncertain distance: Phila. and Trenton R. R. Co. v. Hagan, 11 Wright 246. At so dangerous a crossing, within the city limits, the railroad company should provide efficient safeguards, and not rely on the court to cast all the responsibility upon travelers on the public streets: Phila. & Reading R. R. Co. v. Killips, 8 W. N. C. 526.

Mr. Justice GREEN delivered the opinion of the court, February 20th 1882.

The rule which requires of one who is about to cross the track of a railroad, that he shall stop and look both ways and listen before stepping on the track is a wise and salutary rule. If it were really observed in every instance, accidents at such crossings would be almost, if not quite, impossible.

Experience constantly teaches the necessity of enforcing the rule, by visiting the penalty of contributory negligence rigidly upon those who disregard it. The safety of passing trains and the lives of passengers traveling therein, which are always endangered when obstructions of any kind are upon the track are of quite as much consequence, as the safety and the lives of those who occupy the track even in the momentary act of crossing it. In the present case the charge of the learned judge of the court below is not printed, but so far as we can gather from the answers to the points submitted, he seems to have impressed upon the jury with emphasis, the full terms and import of the rule above stated. But a single error is assigned, and that is to the answer given by the court to one of the points of the defendant. The point was in the following words:

"The fact that a traveler stops and waits until a passing train gets by, does not absolve him or her from looking and listening for trains approaching upon the other track in an opposite direction, and a traveler waiting for a train passing in one direction, must wait sufficiently long so that that train shall not prevent him or her seeing a train approaching in an opposite direction. If, therefore the jury believe that Mrs. Carr, after stopping east of the railroad at Diamond street, while the out train was passing, started across at a time when that train prevented her seeing the incoming train, she was guilty of negligence, and cannot recover."

The point was thus answered: "I have already told you that it was Mrs. Carr's duty, on approaching the track with a view of crossing it, to look and listen, to look in both directions and listen for the approach of trains on either side, and I also said, or it was a necessary inference from it, that if she was delayed in this case, by any cause — the approach of the up train, in the case in hand — it would be her duty again to look in both directions and listen before setting out. I am asked to say to you, however, that if under those circumstances a train which passed up the road shut out any portion of the road from view, it would be her duty to wait until that obstacle to vision was removed, and that, if she did not do so, it would necessarily be negligence and preclude her recovery. What I say is, that it would have been a wise and proper precaution as the event shows. Whether the omission of that precaution be negligence, would depend upon circumstances, and I am not willing to take upon myself the responsibility of saying that under the circumstances in this case, she would necessarily be guilty of negligence in not waiting until the view of the other track was entirely clear. That is for the jury to consider. If the jury find she was negligent, then the consequence would follow which has been already stated." Was there error in this answer? In a possible condition of the facts of the case, it might not have been erroneous to simply affirm the point. It probably would not have been, if the train going out had been at rest, at, or close to the point of crossing, for then it would have been a physical obstacle which manifestly obstructed vision on the other track.

The conspicuous and palpable character of the obstacle would be direct notice to the plaintiff that she could not exercise her faculty of vision in that direction, and the effect would have been precisely the same as if the obstruction had been of a fixed and permanent character. The case would thus have been brought within the ruling in Railroad v. Feller, 3 Norris 226. There the obstruction was a watch-house, and we held the party guilty of contributory negligence, because, although he stopped and looked while in front of it, his looking in one direction was a vain act, and could yield him no information. The same doctrine was held in Railroad v. Beale, 23 P. F. S. 504. But here the train going out was not at rest, nor was it at the point of crossing. It had gone beyond the crossing. All the witnesses to the accident agree in this. As to the precise distance it had gone before the locomotive of the down train passed the rear end of the up train, the testimony is not very distinct. The plaintiff, who had stopped on the east side of the road, to await the passage of the up train, says that after the train had passed, she stopped long enough to look, and did look, first up the road and then down, and listened and heard nothing, and then started to cross. She was asked:

Q. Where was the train that was going out when you...