Reigner v. Pennsylvania Railroad , 258 Pa. 257 ( 1917 )

Opinion by

Mr. Justice Stewart,

We have here again to repeat what we have so often had occasion to say, that when one goes in front of a moving train of cars, which he has had ample opportunity to see and avoid, he is guilty of contributory negligence as a matter of law. True it is that when one upon a railroad track is run down and killed by a passing-train, the law will presume that before entering upon the track he did all that prudence for his safety would suggest, and what the law requires in all such cases—that he stopped, looked and listened. But this presumption, like every other, gives way before admitted facts with which it is irreconcilable. The facts in the present case, as we derive them from the evidence adduced on the part of the plaintiff, are these: Plaintiff’s husband ivas driving in an open buggy on the afternoon of December 29, 1915. As he approached a grade crossing of the defendant’s company’s tracks, four in number, and which he had been accustomed to cross and recross daily for at least sis weeks prior to the accident, he stopped at a point ninety feet distant from the nearest rail on the track he would encounter first in any attempt to cross over. At this point, had he looked, he could have seen up the track on which the train that struck him was running, that is, the third track, 550 feet. At a point seventy-five feet beyond and twenty-five feet from the nearest track, he had a clear view of the track along which the train was approaching for 1,550 feet. Just before entering upon the first track, had he looked in the direction of the approaching train, he could have seen for a distance of three-quarters of a mile. Despite these opportunities thus afforded him to avoid the danger incident to the crossing, when upon the third track, in an attempt to cross over, he .was struck by the engine of a passing train and instantly killed. Witnesses were called on behalf of the plaintiff who testified that as the train approached the crossing no signal of its approach was given, either by whistle, bell or otherwise, and for failure in this regard the effort was to charge the defendant with responsibility for the accident. Into the merits of this contention we need not enter. The appeal is from a judgment of nonsuit entered on the ground, as stated by the learned trial judge in refusing to take it off, that it is incomprehensible how the plaintiff’s husband could have lost his life had he made even a most casual glance at any point after he started his horse from- the ninety foot stopping point. This view meets with our entire concurrence. It only remains to add that the fact of his having stopped at a point ninety feet from the tracks before entering upon the crossing did not relieve him from the duty of again stopping and looking before he attempted to cross. We have repeatedly held that the whole duty of one about to cross the tracks of a steam road at grade is not in all cases confined to his stopping and listening for the approach of a train. .He . must stop at a proper place, and, when he proceeds, he should continue to look and to observe the precautions which the dangers of the situation require. He should stop again if there is another place nearer the tracks from which he can better discern whether there is danger : Muckinhaupt v. Erie R. R. Co., 196 Pa. 213. “The duty to be observant continues so long as danger threatens. If between where the party stops and the tracks of a railroad the situation affords opportunity to discover an approaching train, and injury results because of dis-, regard of such opportunity, the original act of stopping cannot operate to relieve the injured of contributory negligence” : Walsh v. Penna. R. R. Co., 222 Pa. 162, 165. The nonsuit was properly ordered and the judgment is affirmed.