Armstrong v. Pennsylvania Railroad , 212 Pa. 228 ( 1905 )

Opinion by

Mb. Justice Fell,

The grade crossing at which the plaintiff was injured was exceptionally dangerous because of a curve and an embankment which prevented a person on the public road from seeing a train until it was within seventy-five yards of the crossing. The railroad tracks were on an embankment five feet above the public road, and immediately on the other side of them was a ravine or gully which added to the danger of the situation. The plaintiff was riding in an open carriage drawn by two horses. He was familiar with the crossing and knew that a train was about due. He stopped when the horses’ heads were ten or twelve feet from the tracks and looked and listened for a train. There was no other pla9e. from which he could have seen the train at a greater distance, and this was admittedly the best place at which to stop. Not seeing nor hearing the train, he concluded that it had passed the crossing and drove on without looking again until his horses were on the tracks. His horses were struck by a train running backwards, of the approach of which no signal was given.

Whether the plaintiff stopped as long as he should have stopped and exercised reasonable care under the circumstances was a question of much doubt under the testimony. But this question was for the jury. The plaintiff was .not proceeding without regard to his duty. He stopped at the proper place, close to the tracks, long enough to satisfy himself that he could cross in safety. Since there was nothing within the range of his sight or hearing that indicated danger, the court could not say that he actéd recklessly in going on. It was said by the present Chief Justice in Ely v. Railway Co., 158 Pa. 233: “ .... stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury.”

Nor is it clear that the plaintiff failed in his duty to continue to look as he advanced towards the tracks. He had but a few seconds in which to look, and he necessarily gave some attention to his horses. The rule stated in Carroll v. Penna. Railroad Co., 12 W. N. C. 348, and the line of cases which have followed it is in its nature applicable only to clear cases where the facts and circumstances make the conclusion of negligence irresistible: McNeal v. Railway Co., 131 Pa. 184; Muckinhaupt v. Railroad Co., 196 Pa. 213.

The judgment is reversed with a venire facias de novo.