Penn. R. v. Bell , 122 Pa. 58 ( 1888 )

OprNioisr,

Mr. Justice Gbeen:

We think this case comes clearly within our decision in the case of Carroll v. Penn. R. Co., 12 W. N. 348. We there held that a person who was about to cross a railroad track, stepped upon the track and was struck by a passing engine, could not recover, although he testified that before stepping on the track he stopped and looked and listened, but neither saw nor heard any approaching train. Other witnesses for the plaintiff testified that they saw the approaching train which struck the plaintiff, and that he could have seen it from where he said he stopped and looked. A compulsory nonsuit was entered, and on writ of error taken by the plaintiff, the judgment was affirmed. We said, “ The injury sustained by the plaintiff was attributable solely to his own gross carelessness. It is in vain for a man to say that he looked and listened if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.”

In the case of B. & O. R. Co. v. Schwindling, 101 Pa. 258, a boy between five and six years old was standing upon the edge of a platform so close that he was struck and injured by the projecting step of a passing car. We held there could be no recovery because “ the plaintiff had no right to place himself in the position in which it was possible for him to be injured in such a manner, and the defendant was not bound to take precaution against such injury.”

In the present case, if the deceased had been between the rails at the time he was struck, he would have been precisely in the position of the plaintiff in the case of Carroll. JBnt, although not between the rails, he was so close to them, that he was struck by some part of the approaching ear, and be had no better right to place himself in such close proximity to the track than to stand between the rails of the track, and this was decided in the case of Schwindling.

In the present ease, the plaintiff’s principal witness, who was with the deceased at the time of the accident, testified: “ Q. Then when Bell was struck, you and he were facing the engine? A. Why, certainly. Q. Facing the headlight? A. That is the only light we saw. Q. Facing the headlight? A. That was the only light we saw then. Q. You did not sec it till it struck him? A. No, sir. Q. How can you account for two men walking towards the headlight of an engine and it coming towards them and yon were looking for it, that you did not see it till it struck somebody? How do you account for that? A. Because she was running at a rapid speed. Q. Would the rapid speed of the engine prevent your eyesight from taking in the headlight of the engine when it was coming straight towards you? A. I was never in that place before, and we went in the direction we wore told. Q. Yon did see the headlight? A. We saw the headlight when it struck us.” He also testified that when the engine stopped it was not more than ten or twelve feet from him, and although he said it was running like lightning, that statement was a highly exaggerated and impossible one, which could not be true. But even if it were true, it would not help the plaintiff’s case, since the engine was on the track and could not have struck the deceased if he had not been in a place where he ought not to have been.

Another witness for the plaintiff, JD. S. Miller, testified as follows: “Q. Where did that train stop? A. The train stopped on the crossing. Q. How far was the engine from the station-house? A. I just can’t tell how far. Q. About? A. About three car-lengths beyond the crossing.....Q. Did you see that train come? A. Yes, six.....Q. Was there a headlight on the locomotive? A. Yes, sir. Q. And was it lit? A. Yes, sir. Q. And burning? A. Yes, sir.” This witness was a watchman at the station, and was on duty at the time of the accident.

It was proved by a number of witnesses for the defendant, and not at all contradicted, that the track at and near the station is on a straight line, and that a man standing six or seven feet from the track could see an approaching train for half a mile. It is beyond all question, under all the testimony, that if the deceased had really looked for the approaching train at a perfectly safe distance from the track, he could not possibly have failed to see the train as it approached, in ample time to avoid danger. If he came out just as the train arrived, he was equally in default for advancing immediately upon the train. The fact of collision was the result of his purely voluntary act of placing himself so close to the track as to be struck by the passing car, and in such circumstances, the facts being entirely undisputed, there cannot possibly be a recovery in damages without violating the plainest and most familiar legal principles.

We are clearly of opinion that the defendant’s fourth and fifth points should have been affirmed upon the plaintiff’s own testimony. There was not a particle of evidence that the deceased stopped and looked or listened, although it was affirmatively proved by the principal witness for the plaintiff that he and the deceased were warned of the approach of the train and went out of the station for the express purpose of getting upon it.

These .views render unnecessary an extended examination of the various assignments of error.

Judgment reversed.