Dryden v. Pennsylvania Railroad

Per Curiam, The learned judge below after stating the facts in his opinion refusing to take off the nonsuit, continued: “ The collision occurred the instant the carriage reached the track. There was testimony that the. sound of the locomotive whistle was liable to be obscured by the hedge, etc., already referred to. But no matter to what extent that may be true, and no matter which of the figures named are accepted as correctly giving the speed of the train or the distance from the crossing at which it might have been seen by the occupants of the buggy, it is too plain for dispute that they could not have stopped, looked and listened at any reasonably proper place without seeing the train close upon the crossing and realizing the manifest peril of an attempt to pass ahead of it: Holden v. Penna. R. R. Co., 169 Pa. 1. The failure to do so constitutes per se such negligence as bars a recovery: Penna. R. R. Co. v. Beale, 73 Pa. 504; Whitman v. Penna. R. R. Co., 156 Pa. 175; Gray v. Penna. R. R. Co., 172 Pa. 383; Gleim v. Harris, 181 Pa. 387. Nor, in view of the contributory negligence thus conclusively established, is it .of any importance to inquire whether this crossing was particularly dangerous, or assuming it to be such whether there may not have been negligence in the defendant company in running its trains at so great a speed over it. Where the bar of contributory negligence is not in the way, these questions may arise : Ellis v. Lake Shore, etc., R. R. Co., 138 Pa. 506. But the exceptionally dangerous character of a crossing has a bearing upon the degree of care to be exercised by the traveler as well as of the railway company using it. The greater the danger of the crossing, the more obligatory the duty of the traveler approaching it to stop, and if unable to get a sufficient view from his carriage, then to get out of it and go forward on foot: Penna. R. R. Co. v. Beale, 73 Pa. 504; Kinter v. Penna. R. R. Co. 204 Pa. 497. The matter of speed, on the other hand, is wholly immaterial where, so far as the evidence goes, it is manifest that the party injured could not have been caught by the engine except for his failure to use his senses and heed the warning they were bound to give him had he used them. “ Nor can it be contended that these principles are inapplicable here because the plaintiff’s husband was not the driver of the [623] horse drawing the carriage in which he rode. The rule in Boro. of Carlisle v. Brisbane, 113 Pa. 544; Carr v. Easton, 142 Pa. 139; Finnegan v. Foster Twp., 163 Pa. 135, and similar cases, is predicated of the negligence of a voluntary carrier, over whose actions and omissions the persons riding with him and injured had no rightful control, not of one hired by, or for the time being in the employ of such person, and subject to his direction and restraint. As shown by the decisions in Crescent Twp. v. Anderson, 114 Pa. 643 ; and Dean v. Penna. R. R. Co., 129 Pa. 514, even in the former class of case?, the immunity accorded is not absolute to the extent of excusing reasonable caution in the face of patent danger.” The judgment is affirmed on this opinion.