Pennsylvania Railroad v. Ackerman

The opinion of the court was delivered, October 20th 1873, by Sharswood, J". — -There is no subject which, in my judgment, more loudly calls for legislative regulation than that of railroad crossings at grade. We are far behind Great Britain and the countries on the Continent of Europe in the precautions required to prevent those fearful accidents to passenger trains from collisions which have produced the loss of so many valuable lives, accompanied with such horrible suffering from mangled limbs and bodies. The judicial decisions of the courts, and of this court in particular, have gone as far as they could in requiring the utmost care on the part of the servants of the railroad companies, to give notice of the approach of trains, and the like care and caution to travellers in attempting to cross. More particularly is this true either in approaching or passing through populous towns or cities. If the evidence given by the plaintiff below was to be believed, the railroad company in the ease before us was guilty of very gross negligence. It was a dark, foggy morning, with snow on the track, which deadened the usual rumbling sound of a moving train. They were going, even according to their own account, at a much greater speed than was allowed by the ordinance of the city of Allegheny, through whose streets they were passing. They sounded no whistle, and if they were ringing a bell, it could only have been at intervals, not continuously. Too many entirely indifferent witnesses testify that they did not hear a bell, to lead the mind to any other conclusion. This particular crossing was at the time so obstructed by cars on a siding that the view of the track could not be had until the traveller was directly upon it. One witness testified that a person could not see up the track without getting out on the middle of it. This resulted, as he said, from a tannery, which stood out in the way, and from the manner in which the cars stood on the siding, one car standing partly out on the street. On the other hand, the driver of the wagon, the horses of which were killed, according to his testimony, did all he could in the way of precaution, without incurring imminent danger of his own life. He stopped within ten steps of the crossing and listened, but heard nothing. If he had got out and led his horses on the track, the result would have probably been the loss of his own life, as well as that of the horses. It is not to such a case that the opinion and decision in Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504, applied. We adhere to that decision, that the fact that the [269] track cannot be seen from the road is no reason why the traveller should not stop and listen, approach the track at a slow walk, and if he has reason to fear from his horses taking fright, get out of his wagon and lead them by the head until he comes to a point where he can be sure that it is safe to cross. It is negligence in a railroad company to have such a crossing so obstructed as this one appears to have been; but this does not dispense with the necessity of extreme precaution by the traveller,, if he was acquainted with the nature of the locality. The same' strict rule cannot be held to apply to a stranger to.the country. Indeed one of the regulations which ought to be made by legislative authority, should be, that the usual notice on country roads, “Look out for the locomotive,” should be at a point where the approaching train on the track can be seen in either direction; and as to streets in a city, there should be a flagman at every crossing. The point which was put by the defendants below to the learned judge, was too broad under the evidence of the ease, and he would have been guilty of error if he had affirmed it without qualification. He left it to the jury to say whether the servant of the plaintiff had done all that a prudent and cautious man could do. If the view from his approach is obstructed, he should place himself in a position where he could satisfy himself that there was no danger. Whether he could have done this was a question of fact for the jury, and was properly left to them. Judgment affirmed.