McAnally v. Pennsylvania Railroad

Opinion by Mr. Justice McCollum, This is a case of which it may well be said that nothing exactly like it appears in the reports. It must be conceded, however, that the principles applicable to the facts established by the testimony are well settled and plain. The plaintiff, intending to [469] cross the railroad tracks entered upon the space between the safety gates and the nearest rail, before the gates were lowered. The distance from the gates to the rail was about eight feet. When the plaintiff came within six inches of the rail he saw a freight train approaching from the east. He testified that he thought the engine of the train was then from fifteen to twenty feet from where he was when.'he first saw it, and that the train was then running, as he thought, at the rate of twenty or twenty-five miles an hour. Of course, his estimate of the distance of the locomotive from him and of the speed of the train was a mere guess. According to his testimony he could not see a train coming from the east until he had passed the high board fence east of the sidewalk and within three feet of the nearest rail. The safety gates were then closed; he made no effort to pass under them, as he might have done, or to go back from the rail to them, hut he stepped back from the rail and toward the high board fence. His distance from the rail to the point where he stopped is not definitely defined by the testimony, but it is certain that the gateman regarded his position as perilous and did all in his power to rescue him from it. As his calls to the plaintiff to “ Get back ” were disregarded, he sought by force to compel him to get back, but he was met by a stubborn resistance which resulted in the injury for which this suit was brought. It was barely possible that the plaintiff might have escaped injury from the train at the point where he stood when he was called to get back, but the appearances and probabilities were against this view, and the effort of the gateman to remove him to a place of safety was fully justified by them. There is nothing in the evidence to create a belief or authorize an inference that the gate-man in his efforts to remove the plaintiff from the danger to which he was exposed was prompted by anything more than humane motives and a sense of duty. The plaintiff, on the contrary, disregarded his plain duty under the circumstances and stubbornly resisted the efforts made for his protection. Compliance with the call to “ Get back ” was all that was required of him, and it was noncompliance with it which led to the injury of which he complains. Instead of yielding to the efforts of the gateman to rescue him he resisted them, and thus precipitated the casualty which the unresisted efforts of the gateman would have prevented. The resistance he made to the gateman’s efforts to save him [470] from harm appears to have been, the direct and proximate cause of the injury lie received. The omission of the train men to ring the bell, blow the whistle, or check the speed of the train was not the proximate cause of the casualty; nor was the failure of the gateman to lower the gates before the plaintiff passed them the cause of it. The plaintiff saw the train approaching in time to avoid dangerous proximity to it, and the avoidance would have been easy and certain if he had conformed to the instructions or acquiesced in the efforts of the gateman in his behalf. But his disregard of the former and resistance of the latter were in defiance of both, and inexplicable. There is no evidence in the case showing that the conduct of the gateman toward the plaintiff was wilful, wanton or malicious; and if there had been such evidence the company would not be responsible for the consequences of such conduct without proof that the company had instigated or authorized it:' Penna. Company v. Toomey, 91 Pa. 256; Scanlon v. Sutor, 158 Pa. 275. “ An act done upon a sudden emergency when life is apparently in peril is not negligent even though it be mistaken: ” Floyd v. Phila. & Reading Railroad Co., 162 Pa. 29; Donahue v. Kelly, 181 Pa. 93; Oberdorfer v. Philadelphia & Reading Railroad Co., 149 Pa. 6. A careful consideration of the evidence of the case has convinced us that the learned court below did not err in entering a compulsory nonsuit and refusing to take it off. Judgment affirmed.