Timler v. Philadelphia Rapid Transit Co. ( 1906 )

Opinion by

Mr. Justice Elkin,

The undisputed evidence is that when appellant looked the-second and last time..’the head of his' horse-was nine feet from, the track, while he .himself .was seated on his.wagon nearly twenty feet distant. When he last looked and- saw the approaching car it was necessary, in order to cross in safety, that he should drive nine feet to the.track, five feet across it; which-added to the length.ofhis horse and wagon, eighteen feet, made;, a' total of thirty-two feet before he could pass the car in safety.Notwithstanding these-facts, he disregarded his duty to look immediately before going upon the track, and was injured by the collision with the car. Under the settled rule of oúr cases he was .guilty of .contributory negligence, and there can be.ho recovery. This court has frequently said that when, the driver of a' team at the intersection of two city streets, fails to look immediately before going, upon the track, he is guilty of con-tributory negligence: Ehrisman v. Passenger Railway Co., 150 Pa. 180; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Avenue Traction Co., 194 Pa. 75; Burke v. Union Traction Company, 198 Pa. 497; Pieper v. Union Traction Company, 202 Pa. 100; Keenan v. Union Traction Company, 202 Pa. 107; Moser v. Union Traction Company, 205 Pa. 481; Boring v. Union Traction Company, 211 Pa. 594.

The case at bar cannot be distinguished from the cases cited. Indeed, the facts in many of the cited cases more strongly favored the plaintiff than do those of the present case. The appellant looked twice and saw the car rapidly approaching. He first saw it a little more than 800 feet away. He drove on about ten feet and saw the car a little more than 200 feet distant. In other words, while he drove ten feet the car moved about 100 feet. At the time he last looked it was necessary for him to travel thirty-two feet to clear the tracks, while the car would have to move about 200 feet before reaching him. It is clear, therefore, that if he drove at the same rate of speed and the car continued to move at the same rate, a collision must result. Notwithstanding these facts he continued on without again looking for the car which he knew was rapidly approaching. If he had looked immediately before going upon the track, as the rule of our cases requires, he would have seen the car less than 100 feet away, and should have known that he could not cross in safety if he continued driving at the same rate of speed. The evidence shows that he took no precaution for his safety after he looked the second time. The rule of law which requires him to look immediately before going on the track is not complied with if when he looks and sees danger he makes no effort to avoid it. Even if it be conceded that the car was running at an unusual rate of speed, appellant was not thereby excused from the performance of duties imposed on him by law. If he had observed his duty to look immediately before going on the track, the question of defendant’s negligence in running the car at an excessive rate of speed might have been properly submitted to the jury. He did not do so, and the case turns not on the defendant’s negligence, but on the' contributory negligence of plaintiff. Indeed, the greater the danger from the rapidly approaching car, the more imperative his duty to look immediately before going on the track. It was not only his duty to look at the proper place, but when he looked and saw danger which could be avoided by the exercise of reasonable care, it was bis duty to avoid that danger. We have frequently said that it is as much the duty of the driver of a team to avoid a collision in these cases as it is of the motorman of a car. The learned court below gave binding instructions for defendant, and in this we see no error.

Judgment affirmed.