Greenwood v. Phil. W. & B. R.

Opinion,

Mr. Chiee Justice Panson:

The plaintiff brought this action in the court below to recover damages for injuries received by him, and which he claims were caused by the negligence of the defendant company. The court below gave a binding instruction to the jury to find for the defendant. Under such circumstances, we must assume not only that all of the plaintiff’s testimony is true, but that he is entitled to every inference fairly to be drawn from it.

The facts of the case, as we gather them from the evidence, may be briefly stated as follows: The .plaintiff was’ a member of the Hanley Hose Company in the city of Chester. On the night of March 26,1887, he was at the hose house and informed one or more members that there was a fire; to use his own language: “It looked from Edgmont avenue to be over at Mr. Eyre’s house, around Seventh street. That is where I seen the fire.” No other person in Chester appears to have seen this alleged fire; nor was there any alarm given at any of the other engine houses. The result of the plaintiff’s announcement at the Hanley Hose Company’s house was that the company immediately turned out. The plaintiff and one or two others got on the hose carriage, and with a spirited horse started out to find the fire. The horse was driven at a rapid rate of speed for some distance along Fifth street and then turned up Welsh street. The railroad of the defendant company was one square from the corner of Fifth and Welsh. At the- railroad crossing the company had for some time kept a watchman, and safety-gates, which were lowered upon the approach of trains. Upon the night in question, when the hose carriage approached the crosssing, the gates were not lowered; they had become out of order that morning and had not been repaired. The watchman displayed no light and gave no warning. The hose carriage did not stop as it approached the track, in order to afford an opportunity to look and listen; nor did it even slacken its speed, but continued on, was struck by the train, and the plaintiff was thrown off the carriage and injured. ,

Under such circumstances does the case come within the familiar rule, “stop, look, and listen” ? It was strongly urged upon the argument that the rule referred to does not apply for the* reason (a) that the plaintiff had a right to rely upon the fact that the safety-gates were up, and (5) that the said rule is not applicable to towns and cities where trains are constantly crossing streets.

I do not understand the law to be that when a railroad company adopts safety-gates or any other appliance for the protection of the public, that the public are thereby absolved from the duty of taking any care of themselves. Conceding that the company was required to take extra precautions by reason of the gates being out of order, yet the plaintiff was also bound to do his part. He has no right to omit the ordinary precautions when approaching a railroad crossing merely because he finds the gates up. Machinery of all kinds is liable to get out of order, and may do so just at the critical moment of the approach of a train. In all such cases the safety of the traveling public requires that each party shall be held to the exercise of due care. Had this hose carriage stopped near the crossing instead of rushing on at reckless speed, this accident would not have happened. The train could have been seen for one hundred feet before the crossing was reached. If the rule to stop, look, and listen were always observed, an accident at crossings, now so frequent, would rarely occur, whether in town or country. It is difficult to see why the rule is not as important in towns and cities as in the country, where in many instances the track can be seen for a long distance. The rule itself is so valuable; is sustained by such abundant authority; and is moreover founded upon such excellent common sense reasons, that we will neither depart from it, nor allow it to be undermined by exceptions. It is a clear and certain rule of duty, and a departure from it is more than evidence of negligence ; it is negligence per se.

I have not referred to the question of the city ordinances, for, conceding the negligence of the ■ defendant company, the plaintiff was guilty of such contributory negligence as bars his right to recover. . Nor have I discussed the numerous cases cited, as but few of them have any application to the peculiar circumstances of this case. ,

Judgment affirmed.