Ervay v. Waverly, Sayre & Athens Traction Co. , 240 Pa. 440 ( 1913 )

Opinion by

Mr. Chief Justice Fell,

The plaintiff was injured in a collision between along sled in which he was riding and a car of the defendant at a street crossing in a borough. When he reached the house line of the street on which the defendant had a single track road he saw a car three hundred or four hundred feet from the intersection and approaching very rapidly. When his horses’ front feet were on the footway crossing fifteen feet from the tracks, he again looked at the car and saw it two hundred or two hundred and fifty feet from the intersection and then saw that it was approaching very rapidly, at more than twice its usual speed and at the rate of twenty-five or thirty miles an hour. He did not look again but acted on the assumption that he had time to cross in advance of the car and drove on at a walk of three or four miles an hour. The back part of his sled was struck by the car. When he last looked at the car, his horses’ heads were fifteen feet from the track and because of the length of his sled and team, the width of the track and the overhang of the car he had to drive forty-five feet to cross in advance of the car, which according to his highest estimate of distance was within two hundred and fifty feet of him and was moving more than six times as fast as he was. A collision was inevitable unless he or the motorman took measures to avoid it. With full knowledge of the situation he went on when he had ample time in which to stop and ample room in which to turn to either side, and left the whole responsibility of avoiding a collision with the motorman.

In determining whether the case should have been withdrawn from the jury, it may be assumed that the motorman was negligent, but a contributing cause of the plaintiff’s injury was his own negligence in exposing himself to a danger which was manifest to him when his horses were on the crossing and which would have been more manifest to-him if he had looked when it was his duty to look, immediately before driving on the track. He was not released from this duty by the assumption, however reasonable, that the motorman would check the speed of the car in time to enable him to cross in safety. The duty of a pedestrian or driver to look, and if necessary because of obstructions to vision, to listen before crossing the track of a city passenger railway is as fixed as the duty of which it is a part to stop, look and listen before crossing the track of a steam railroad. The rule in relation to the observance of this duty is unbending and to be observed at all times and under all circumstances and a failure to observe it is negligence per se. In the observance of it no question can arise as in the case of a driver at the crossing of a steam road in relation to the usual or proper place to stop. The proper place to look is when close to the track or as stated in some of our cases at the edge of the track. There has been no departure from the rule as announced in Ehrisman v. Railway Co., 150 Pa. 180, and it has been followed in a long line of cases. In Smathers v. Railway Co., 226 Pa. 212, it was said by our Brother Elkin, in speaking of the iduty to look before crossing the tracks of a railway company: “The one positive and imperative duty always required under such circumstances is to look when the tracks are reached and immediately before crossing. Failure to perform this duty will defeat a recovery under the authority of all our cases. In such cases no question can arise as to the proper place to look or whether there is a better place as in a steam railroad grade crossing because the settled rule is that the place to look is immediately before going upon the tracks.”

The assignment of error to the refusal of the court to enter judgment non obstante veredicto is sustained and judgment is now entered for the defendant.