Pennsylvania Railroad v. Garvey

Chief Justice Mercer delivered the opinion of the court, February 2d, 1885. Neither assignment of error is sustained. Under the evidence the question of contributory negligence was' properly for the jury. At the place where Garvey attempted to cross there were five tracks. There is evidence that on coming to the railroad, with 1ns wife and another woman, they stopped, looked and listened, and saw rip sign of an approaching train and heard no locomotive. They started across the tracks, the women a little ahead of Garvey, the women crossing safely. In crossing the fourth 'track just behind'them, he was struck by a passing train and killed. It cannot be declared as a rule of law that he must stop, look and listen between the different tracks lying close to each other. Indeed to so stop instead of hastening to cross all of them, might have been evidence of negligence. He did not stop the second time to listen. Whether it was less dangerous to move continuously across the tracks, than to loiter between them was a question for the jury. Naturally solicitous for the safety of his wife, who was a little in advance of him, and intent on getting her out of danger, he may not have given as much thought to protecting himself from the rapidly approaching train as he otherwise could have done. If so however it cannot be held to be negligence in. law. The jury to which the case was submitted is the proper tribunal to determine whether it was negligence in fact. Judgment affirmed.