Siegel v. New York Central Railroad

Opinion by Trexler, J., The plaintiff was driving an electric automobile along Sassafras street in the City of Erie. It was about ten o’clock at night. As he approached the railroad crossing the safety gates were up. He stopped, looked and listened. He proceeded to cross what are known as the high speed tracks, four in number. He then came to an open space of fifty feet. Although he says he continued to look and listen he did not stop in this intervening space but proceeded at the rate of eight miles per hour to cross the remaining tracks. As he was about to enter the next track he saw an engine approaching and swerved his car to avoid it but was caught apparently by the side of the engine and dragged some distance. His car was wrecked and he was1 injured. The jury found for the plaintiff but the, court entered judgment for the defendant n. o. v. There was evidence that alongside of the intervening space of fifty feet there were some obstructions to plaintiff’s sight of the track. There was a watchman’s tower, a switch box, a low coal shed and a telegraph pole, but these obstructions did not entirely and continuously shut off the view of the track and for a [310] space 'of eighteen and one-half feet from the watchman’s tower to the track where the plaintiff was injured, there was a clear view. On the facts as presented it seems impossible that the plaintiff had he looked and listened, would not have seen and heard the approaching engine. He was going at the rate of eight miles per hour and the engine was approaching at the same rate. With the open space of eighteen and one-half feet unobstructed by any object that would interfere with his view and considering the slow rate his vehicle and the locomotive were moving, one would 'think a collision would be impossible if the plaintiff used his senses of sight and hearing. There was some negative testimony that the witnesses heard no ringing of the bell and did not see any headlight but there is direct and positive testimony that the bell was rung and the light was burning and the engine was “popping” very hard, i. e. emitting steam. • The plaintiff was hit just as he was about entering the track. There, was as stated before a space of fifty feet between the tracks. This furnished a safety zone where plaintiff could stop, look and listen. He was not in a position of one who has committed himself to a crossing, the tracks lying close together where to stop may invite greater peril than to proceed. The intervening space was' large enough to allow him to stop with entire safety. The vehicle being entirely under human control, the danger of stopping near the tracks was absent. If he had been driving a team of horses, a different element of danger might have been present. The dimensions of the open space are not disputed. The case affords no parallel to those where it has been held that it is for the jury to decide whether there was a second proper stopping place or not. The rule of law is that having once entered the tracks without having violated any fixed rule, the duty to watch continues to the end and if any intervening space between the tracks offers where the plaintiff can have larger opportunities for seeing and hearing, he is bound [311] to stop, look and listen quite as much as he was bound to stop before entering upon the first track: Keppelman v. P. & R. Co., 190 Pa. 333; Barthelmas v. L. S. & M. S. Ry. Co. 225 Pa. 597. As plaintiff violated this imperative duty he lost his right to recover for the injury sustained. The application of this rule can the more readily be made to the case before us in view of the fact that all. of the circumstances as developed by the testimony show that had he stopped in this space the accident would have been avoided. As we do not think plaintiff is entitled to recover, we need not discuss the assignments of error as to the damages and to certain alleged errors in the charge. The assignments of error are overruled and the judgment is affirmed.