Penn. R. v. Mooney

Opinion,

Me. Justice Geben :

. There was no evidence but that of the plaintiff on the trial of this case. Three witnesses were examined who were present at the occurrence of the accident, but only one of the three saw and described the actual collision which caused the death of the plaintiff’s husband. It was testified by all the witnesses that the deceased and several others, all in the employ of the defendant, were walking along the railroad track on their way to do some work on the road. The deceased left the track-shortly before reaching Green Lane crossing to attend to a call of nature. No witness seems to have observed his return to the track and no one describes it. Archer, the only witness who saw the very fact of the collision, thus describes it: “ Q. Where were you at the time of the accident ? A. About one hundred or perhaps one hundred and fifty yards below the crossing to the best of my knowledge. I didn’t measure it, but to the best of my knowledge.” . . . . “Q. Did you see Mooney struck by that passenger train ? A. Yes, sir. Q. Where was he at the time he was struck to the best of your knowledge ? A. To the best of my knowledge he was just about in the act of stepping across the crossing.” .... “Didyou see from where Mooney came ? A. No, sir. Q. He was just walking along the track then the same as the rest of you? A. No, sir. Q. What was he doing? A. He was in the act of going across the track at the time I saw him. There was a man walked with me, and the track I was walking on was just only made. I was walking along and the man made the remark. Q. What did you see ? A. At the time I saw him he was just struck by the train. Q. And he was struck by the train at this crossing ? A. To the best of my knowledge; I judge it was about the crossing. Q. Are you positive of it ? A. To the best of my knowledge. Q. Are you positive of it? A. Yes, sir; for we examined it there the next day — that afternoon. Q. How was it that you did not see where Mooney came from if you saw him struck ? A. Tins man made the remark to me first walking down; I happened to look up. Q. And you looked up and saw Mooney right at the crossing and instantly struck? A. Yes, sir.”

The witness Mulhearn says nothing about seeing Mooney until after he was struck, and the only remaining witness, Welsh, said he had passed on about one hundred or one hundred and fifty yards beyond Green Lane crossing when the accident occurred; that he did not see the killing, and that he next saw Mooney’s body about ninety feet on the other or western side of the crossing. Neither Welsh nor Mulhearn saw the actual collision, and the only witness to that fact was Archer, the whole of whoso testimony on that subject is quoted above. The consideration of the case becomes very much simplified in view of the state of the testimony upon this vital subject. There was much contention in the argument as to whether Mooney was walking along the track and on it, or across it on the highway called Green Lane, at the moment he was struck. It is difficult to understand how he came to be crossing the track transversely on the highway, when he and all the others were proceeding lengthwise along the track on the way to their work, but Archer testifies to it, and although he says he was one hundred to one hundred and fifty yards away, he says he saw Mooney as he was struck, and that he was at that moment crossing the track.

It matters but little, however, whether Mooney was crossing the highway lengthwise and between the rails of the track, or crossing the railroad and between, the rails in the highway, at the moment he was struck. He was on the track or he would not have been struck. If he was crossing the highway he was a trespasser and there could be no recovery, and if he was crossing the track he was guilty of most manifest contributory negligence in stepping upon the track immediately in front of an approaching engine. We have passed decisively upon these facts in a number of our recent decisions. In Carroll v. Penn. R. Co., 12 W. N. 348, we held there could be no recovery, although the plaintiff testified that before he stepped upon the track ho stopj>ed and looked and listened but neither saw nor heard the approaching train. We said: “ The injury sustained by the plaintiff was attributable solely to his own gross carelessness. ft is in vain for a man to say that he looked and listened if in desjúte of what his eyes and ears must have told him he walked directly in front of a moving locomotive.” Similar cases are Monongahela City v. Fischer, 111 Pa. 9, Mulherrin v. Railroad Co., 81 Pa. 366; Moore v. Railroad Co., 108 Pa. 349; B. & O. R. Co. v. Schwindling, 101 Pa. 258; Penn. R. Co. v. Bell, 122 Pa. 58.

In the present case there was no proof that Mooney stopped, looked, or listened before stepping upon the track. In this respect the plaintiff’s case has nothing to sustain it but the presumption that the deceased performed his legal duty of stopping, looking, and listening, but that presumption, slight and faint at the best in this class of cases, is completely overborne. by the affirmative proof to the contrary that he was struck the moment he set foot on the track. It is impossible that he could have looked and listened when the indisputable fact is that he stepped on the track immediately in front of an approaching locomotive. In the very recent case of Marland v. The Pittsburgh and Lake Erie R. Co., 123 Pa. 487, we said: “ 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.”

It was suggested in the argument of the ease at bar that Mooney’s view of the approaching train might have been obscured by the smoke of another train which was passing in the opposite direction and which, it was said by some of the witnesses, hugged the track. But that theory is entirely dispelled by the affirmative testimony of Archer, the plaintiff’s chief witness, who testified that he saw the train strike Mooney although he was a hundred to a hundred and fifty yards away. Moreover the law requires a listening, as well as a looking, for a coming train,, and obscuration of vision is no defence against a failure to listen.

These considerations sustain the seventh assignment of error and it is unnecessary to consider the others.

Judgment reversed.