Marland v. Pittsb. & L. E. R. , 1889 Pa. LEXIS 672 ( 1889 )

Opinions,

Mr. Justice Green:

On the trial of this case the plaintiff testified that he stepped upon the track, and was instantly struck and injured. It is true he said he looked up and down the track and saw nothing ; but it is necessarily true, also, that if he made use of his eyesight he must have seen the approaching train. He could not possibly look along the track in the direction of the approaching train and fail to see it, since his presence on the track and the collision were simultaneous. We have pronounced emphatically upon such facts in several of our recent cases.

In Carroll v. The Penn. R. Co., 12 W. N. 348, we said: “ The injury received by the plaintiff was attributable solely to his own gross carelessness. It is in vain 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.” The same doctrine was applied in the case of Moore v. The Philadelphia, Wilmington and Baltimore R. R. Co., 108 Pa. 349. There the plaintiff stood between two tracks waiting for a train to pass. He testified that he looked up and down the road and saw no train, but nevertheless he was struck by an approaching engine, and we held he could not recover. In the very late case of Penn. R. Co. v. Bell, reported in 122 Pa. 58, we reversed the judgment because the court below did not direct a verdict for the defendant upon entirely similar facts and for the same reason. There also the plaintiff’s witness testified that he looked for the train, but that the deceased was struck the moment they saw the headlight, and we held that the deceased had voluntarily placed himself so close to the rails that he was struck by the engine, and, therefore, there could be no recovery.

In the present case, the facts aré still more damaging to the plaintiff, because he attempted to cross the track immediately in front of the train which he could not possibly have looked for without seeing. It was about half-past five o’clock upon an afternoon in February. There was no evidence that it was dark, and the plaintiff’s principal witness testified tliat he saw the plaintiff falling, from a point almost a hundred feet distant. The attempt to cross the track in front of an approaching train so close that the plaintiff was instantly struck, was an act of gross carelessness on his part, contributing directly to his injury, and this precludes any recovery.

Judgment affirmed.

No. 214.

For the reasons stated in the opinion in the case of Marland, a minor, by his next friend, v. The Pittsb. & Lake Erie R. R. Co., the judgment in this case is affirmed.