Ehrisman v. East Harrisburg City Passenger Railway Co.

Opinion by Mb. Chief Justice Passon, On the 26th of August, 1891, the plaintiff was driving a one horse market-wagon along Second street in the city of Harrisburg. In attempting to cross the defendant company’s road upon this street, his wagon was struck by a moving car, causing the injury for which this suit was brought. He was driving down the street in the same direction as the car, and, when about fifty or sixty feet from the track, according to his testimony, he looked out but did not see a car coming. He then drove his horse, to use his own expression, “ cati-cornered ” across the track, and without looking out again before he crossed it. When seen by the motor-man in charge of the car, his wagon was moving in the same direction, and the accident was evidently caused by pulling his horse directly across the track in front of the car. The degree of care requisite to be observed in crossing the track of a steam railroad has been the subject of repeated decisions. In Railroad Company v. Beale, 73 Pa. 504, it was held to be the duty of the traveler to stop, look and listen before crossing the track. The rule was declared to be an unbending one, and a failure to observe it is negligence per se. The doctrine of this case was much criticised at the time, but is now generally accepted as the law in this country. Subsequent reflection and experience have only strengthened our view of its wisdom. We have no doubt that in many instances it has been the means of saving human life. If strictly observed, accidents at railroad crossings would be as rare as they are now frequent. No rule, however wise, can avert the consequences resulting from negligence. The large increase of street railways in our cities and large [186] towns within the last few years, while it has added greatly to the convenience of the citizens, has also added another element of danger. It is therefore necessary to define nearly as may be the relative duties of street car companies, and citizens at street crossings, or other places. There is this distinction to be observed between steam railroads and street railways. In the case of the former, they have the exclusive right to the use of their tracks at all times and for all purposes, except at road crossings. Street railways have not this exclusive right. Their tracks are used in common by their cars and the traveling public. While this common use is conceded, and is unavoidable in towns and cities, the railway companies and the public have not equal rights. Those of the railway companies are superior. Their cars have the right of way, and it is the duty of the citizen, whether on foot or in vehicles, to give unobstructed passage to the cars. This results from two reasons; first, the fact that the car cannot turn out, or leave its track, and secondly for the convenience and accommodation of the public. These companies have been chartered for the reason in part, at least, that thejr are a public accommodation. The convenience of an individual, who seeks to cross one of their tracks, must give way to the convenience of the public. It would be unreasonable that a car-load of passengers should be delayed by the unnecessary obstruction of the track by a passing vehicle. On the other hand, it is the duty of the companies to see that their motor-men shall be on the alert, not only at street crossings, but everywhere upon the tracks, to see that citizens are not run down and injured. The rule to stop, look and listen is applicable in part, at least, to crossing street railways. A person driving a vehicle has but to use his eyes to avoid such accidents. There is no danger, as in the case of steam roads, of stopping a horse at the very edge of the track. When, therefore, a citizen attempts to cross such track, it is his duty when he reaches it to look in both directions for an approaching car. It very rarely, if it ever happens, that the street is so obstructed that the car may not be seen as the citizen approaches the track. It is his duty to look at that point, and if there is any obstruction, to listen, and his neglect to do so is negligence per se. This is an unbending rule to be observed at all times, and under all eircum [187] stances. In the case of steam roads, a question, sometimes arises as to the proper place to stop, look and listen. Where there is a fair doubt upon this question, we have held that it must be submitted to a jury. But no such case arises in the case of city railways. If the citizen looks just before he crosses, he avoids all danger of accident. Applying these principles to the case in hand, it is manifest the plaintiff was guilty of contributory negligence. He never looked in the direction of the approaching car at the time he turned the head of his horse across the track. When he' did look he was fifty or sixty feet away with a loaded wagon, and his horse walking slowly. Moreover he did not cross directly, but in an oblique direction, which would add considerably to, the time of crossing. During that period an electric car would travel a considerable distance. The conductor may not have anticipated that the plaintiff would attempt to cross the track immediately in front of his car. Be that as it may, and conceding the negligence of the company, the contributory negligence of the plaintiff was so palpable that the court below should have so declared it as a'matter of law, and instructed the jury to find for the defendant. Judgment reversed. [See, also, the next ease.]