Pittsburgh, Fort Wayne & Chicago Railway, &c., Co. v. Collins

Mr. Justice Paxson

delivered the opinion of the court,

On the evening of November 9th 1876, James Collins was found dead on the tracks of the Pittsburgh, Fort Wayne & Chicago Railway Company, in the city of Allegheny. An engine and two cars had just passed when he was found, and it seems clear from the evidence that one or both of the cars, and possibly the engine, had passed over him and inflicted injuries of which he died the same evening. This suit was brought in the court below by the widow and minor children of the deceased to recover damages for his death, upon the ground that it was occasioned by the negligence of the railway company.

We are saved the discussion of the question as to how far negligence on the part of the company or its employees was established by the fact that, conceding all that was claimed on behalf of the plaintiffs below in this respect, the deceased was clearly chargeable with contributory negligence. This will appear from a brief statement of the undisputed facts. He had lived for years m the immediate neighborhood of the spot where he was killed; was necessarily familiar with the track at that point, and must have known that it was a place of danger. There was no public crossing at or near the place where he was injured. The last time he was seen before the accident was about seven o’clock in the evening, passing along Wilkins street towards Preble avenue. The witness says he was under the influence of liquor. - He was probably on his way home. Preble avenue is forty feet in width, and runs parallel with and by the side of the track for a short distance. There was a sidewalk on the side of Preble avenue furthest from the track, along which he might have walked in safety to the point where he would naturally turn to go home. This was a switch connecting his employer’s mill with the railroad, and which ran across Preble avenue. Instead of turning off at the switch and going towards home he appears to have crossed the switch and continued on along the avenue, or else upon the railroad track, in a direction contrary to his home, to the spot where he W'as killed. It was undisputed that from that point the locomotive could be seen for a considerable distance; that it was running at a moderate rate of speed, with a bright head-light. There were three tracks. The track next the avenue was unballasted, and between that and the next track were large piles of cinders. The deceased was found lying on the track next to the avenue, which was a side track. In the immediate vicinity were piles of cinders of considerable size. The night was unusually dark. Notwithstanding this he could hardly have crossed the switch without knowing it, and being thus warned that he was deviating from his course. If, however, he had passed the switch, and had inadvertently or by reason of the darkness stepped upon the track, the ties and rails and piles of cinders must have instantly warned him of his danger. It is thus the case of a man who without right, with a full knowledge of the location, voluntarily places himself upon a railroad track, at a place where there is no crossing, and which was a known point of danger. He was a mere trespasser, and the case comes directly within the ruling in The Railroad Co. v. Norton, 12 Harris 465, that “where a person places himself on the tracks of a railroad he can claim no damages, except for wanton injury, and not for injury sustained in the pursuit of the company’s lawful business in the ordinary manner, even though the negligence, of the company’s agents contributed to the result.” In Mulherrin v. The Railroad Co., 81 P. F. Smith 367, it was said: “ Except at crossings where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company has not only a right of way, but such right is exclusive at all times and for all purposes.” It may be the deceased was so far under the influence of liquor as not to know precisely where he was going. But the plaintiffs'dn error are not responsible for that. They did not furnish the liquor. If, as was strongly contended at bar on behalf of the defendants in error, the deceased was not affected by liquor at all, there was still less excuse for his being on the track. It was negligence per se to go there, knowing as he did the locality and its danger.

Much as we deplore the loss which this unfortunate family have sustained, the law compels us to say that it is one for which the plaintiffs in error are not responsible. This renders it unnecessary to discuss any of the other points raised by this record.

Judgment reversed.