Aiken v. Pennsylvania R. , 130 Pa. 380 ( 1889 )

Opinion,

Mb. Justice Mitchell :

This is a perfectly clear case of contributory negligence, unrelieved by any circumstance which the jury should have been allowed to consider as an excuse for a violation of the plainest dictates of prudence, and the settled rules of law. The deceased, at 9 o’clock on a rather dark night in January, was walking along Penn avenue, in the borough of Wilkinsburgh, and came to the railroad, which at that point had then ten or eleven tracks at grade, occupying a space of about one hundred fifty feet. It was intrinsically a dangerous place, and at the particular time was made more than usually so by standing cars and piles of pipe and railroad ties which obstructed the view on one side, and on the other side a train on one of the tracks, with an engine blowing off steam. In the face of these manifest dangers, the deceased and his companion walked straight on, without stopping, until they had crossed six or seven tracks, when they saw an approaching train. At this moment they were either on a spur track that ends a few feet beyond the crossing, or between it and the first passenger track, on which the train was coming. Counting the spur tracks as safe, they had a space of forty-five feet of actual safety in which to wait the passage of the train; but as there is no evidence that they knew that the so-called spur tracks were not ordinary tracks, liable to be used at any time, it is hardly proper to charge them with the knowledge. But from the nearest spur track which they were on, or had just crossed, to the passenger track on which the train was, there was a clear space of twelve feet, in which deceased might have waited in safety, and in which, fortunately for himself, his companion did wait.

From this point I take the narrative in the language of Irwin, the deceased’s companion: “When we come to the track, we noticed a train coming. Q. That is, to the main track? A. Yes, sir; and it was pretty close before we seen it; and Mr. Aiken attempted to go on,.and I stopped. I said: ‘We had better stop;’ and he says, ‘Come on; we can get across; ’ and he started, and I stopped. I had attempted to get across, and by the time I was at the track I could lay my hand on the engine.” None of these facts were in the slightest doubt, for the evidence was in behalf of the plaintiff, and was that of the only witness who saw the accident. It is therefore indisputable that the deceased saw the train while he Avas in á place of safety, and voluntarily took the chances of crossing in front of it. In the face of this patent fact, the other circumstances — the danger of the place, the rate of speed of the train, the absence of warning, the obstructions to sight and hearing, etc. — became totally unimportant, and the plaintiff should have been nonsuited, or a verdict directed against her.

The learned counsel for the defendant in error has endeavored to assimilate this case to Penna. R. Co. v. Werner, 89 Pa. 59; but there is a marked and insuperable line of distinction between them. That was said by our Brother Sterrett, in his opinion, to be a close case; but, in laying down the rule that a man in a position of danger is not responsible for a mistake of judgment in getting out, he was careful to add the explicit qualification that he must have got into the danger without negligence or fault of his own. Keeping this qualification in mind, that case was the logical sequence of Johnson v. Railroad Co., 70 Pa. 357. But in the present case the essential premise is wanting. Aiken not only walked into the dangerous position without any of the precautions which the situation required, but, when confronted with the actual emergency, had his attention called by his companion to the danger imminent, and his reply, “ Come on; we can get across,” — does not indicate a man who was confused, and in doubt what to do, but one who saw the risk, and chose to encounter it.

In the portion of the charge contained in the fifth specification of error, the learned judge said to the jury that, “ ordinarily, the rule of law is ... . that a man before crossing a railroad track must stop, look, and listen.....I think that it is usually applied, however, to parties who are driving, and not to parties walking. It is, after all, not a rule of law, but a rule of evidence only; and therefore the duty of stopping is always a question for the jury.” This was clear error. The rule as to stopping applies equally to persons walking as to persons driving. There is no distinction, in the nature of things, except of degree as to danger, and none is recognized in the cases: Nagle v. Railroad Co., 88 Pa. 35; Carroll v. Railroad Co., 12 W. N. 348; Penna. R. Co. v. Coon, 111 Pa. 430; Marland v. Railroad Co., 123 Pa. 487. It is made quite as much for the safety and protection of passengers on the train as of passengers on the highway; and the stopping is an essential part of the rule, to enforce attention to the accompanying duties of looking and listening, and to secure their performance in something more than a perfunctory and heedless way; in fact, to prevent the very thing which cost this unfortunate man his life. Irwin was asked: “ Could you hear the train until you got past these obstructions? A. Possibly we might have, if we had been paying particular attention. We were talking, and I didn’t notice.” It is not a rule of evidence, but a rule of law, peremptory, absolute and unbending; and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions. That failure to stop is not merely evidence of negligence, but negligence per se, has been said so often, from North Penna. R. Co. v. Heileman, 49 Pa. 60, to Greenwood v. Railroad Co., 124 Pa. 572, that to cite the cases would be wearisome.

The evidence in the sixth assignment, relative to the speed at which trains usually ran over this crossing, was irrelevant, and tended to divert the attention of the jury from the particular case to the general condition of danger at this crossing. This objection was not obviated by the testimony of Irwin that he thought the train was going “ about the usual rate of speed.”

The assignments of error must be sustained.

Judgment reversed.