Smathers v. Pittsburg & Butler Street Railway Company
| Decision Date | 03 January 1910 |
| Docket Number | 119 |
| Citation | 226 Pa. 212,75 A. 190 |
| Parties | Smathers v. Pittsburg & Butler Street Railway Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 11, 1909
Appeal, No. 119, Oct. T., 1909, by defendant, from judgment of C.P. Butler Co., Sept. T., 1908, No. 31, on verdict for plaintiff in case of Araminta Smathers v. Pittsburg & Butler Street Railway Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before TAYLOR, J., specially presiding.
The circumstances of the accident are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $5,000. Defendant appealed.
Error assigned was in refusing binding instructions for defendant.
Judgment affirmed.
T. C Campbell, with him A. E. Reiber, for appellant. -- The deceased was guilty of contributory negligence: McCracken v. Traction Co., 201 Pa. 378; Dryden v. R.R. Co., 211 Pa. 620; Ehrisman v. Ry. Co., 150 Pa. 180; Wheelahan v. Traction Co., 150 Pa. 187; McPhillips v. Traction Co., 19 Pa.Super. 223; Gilmore v. Traction Co., 26 Pa.Super. 97; McCartney v. Traction Co., 27 Pa.Super. 222; Omslaer v. Traction Co., 168 Pa. 519; Kinter v. R.R. Co., 204 Pa. 497; Keller v. Ry. Co., 35 Pa.Super. 488; Lohrey v. Penna. R.R. Co., 36 Pa.Super. 287; Burke v. Traction Co., 198 Pa. 497; Moser v. Traction Co., 205 Pa. 481; Houston v. Traction Co., 28 Pa.Super. 374.
John M. Greer, with him Thomas H. Greer and John B. Greer, for appellee. -- The rule to stop, look and listen is not to be inflexibly applied to foot passengers or others crossing a street railway, as enunciated in the following cases: Ehrisman v. Railway Co., 150 Pa. 180; Carson v. Fed. St., etc., Ry. Co., 147 Pa. 219; Gilmore v. Pass. Railway Co., 153 Pa. 31; Kestner v. Pittsburg & Birmingham Traction Co., 158 Pa. 422; Jackson v. Pittsburg, etc., Traction Co., 159 Pa. 399.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
In the presentation of this case there has been a confusion of the stop, look and listen rule and the rule which imperatively requires the driver of a team to look for an approaching car immediately before driving upon the tracks of a street railway at a right-angled crossing of intersecting streets. The first rule applies to public crossings over what are commonly known as steam railroads, while the second relates to the duty of a traveler as he approaches the tracks of a street railway laid upon a public street. The degree of care required is not the same in both instances, and our cases have never held that it was. The syllabi in some of the earlier cases do state that it is the duty of a traveler about to drive across a street railway, to stop, look and listen at the edge of the tracks and his neglect to do so is negligence per se. This appears in Ehrisman v. Passenger Railway Company, 150 Pa. 180, and in Wheelahan v. Traction Co., 150 Pa. 187. The most casual reading of the opinions in these cases will show that the syllabi did not accurately state what the court decided as to the application of the stop, look and listen rule to street railway crossings. These cases only held that the rule is applicable in part to street railways, but the distinction as to the duty of the traveler in each class of cases was clearly pointed out. In Omslaer v. Traction Co., 168 Pa. 519, it was said that so much of the rule as requires the traveler to look and listen for an approaching car before going upon the tracks is applicable to street railways, but that there is no settled rule which requires him to stop before attempting the crossing. The rule as applicable to the facts of that case was properly stated, but the duty to listen is not always imperative and depends upon circumstances. If when he looks his view is obstructed so that he cannot see, it then becomes his duty to listen. What was really decided in these cases and in the long line of cases which follows was that it is the absolute duty of a traveler or the driver of a team at the intersection of two city streets upon which is laid a line of street railway to look immediately before going upon the tracks, and failure to do so is negligence per se. If when he looks he sees an approaching car so near as to make an attempt to cross dangerous, it is his duty to stop; or, if when he looks at the edge of the tracks his view is obstructed so that he cannot see it then becomes his duty to listen, and under some circumstances it may be his duty to stop as if when he looks and listens he still is in doubt about the location and movement of the car. If in any of these situations he fails in the performance of the duty required he is guilty of contributory negligence and cannot recover. The one positive and imperative duty always required under such circumstances is to look when the tracks are reached and immediately before attempting the crossing. Failure to perform this absolute duty will defeat a recovery under the authority of all our cases. In such a case no question can arise as to the proper place to look or whether there is a better place as in steam railroad grade...
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