Murray v. Pennsylvania Railroad , 242 Pa. 424 ( 1913 )

Pee Cueiam,

At the place of the accident which caused the death of the plaintiff’s husband, the defendant had four main tracks which crossed at grade a public highway in a borough. At one side of the crossing it maintained a foot bridge across its tracks and twenty feet above them which was used by it for signals and by pedestrians, who chose to use it as a passageway. When the deceased reached the crossing it was obstructed by a moving freight train and he stood several minutes near the tracks and within a few feet of the steps that led to the overhead bridge, before starting to cross. He was struck on the third track by a train which admittedly was running sixty miles an hour, through a dense fog and of the approach of which, according to the. plaintiff’s witnesses no notice was given. The only ground on which the case could have been withdrawn from the jury was that the deceased having a choice of ways was negligent in not taking the safer one. If the danger of the way he chose was imminent it might be said as matter of law that he was negligent in taking it when a safer way was open to him. But he was under no duty to leave the public highway if, after the exercise of care, he found no cause to apprehend danger. The ¡presumption of care by him was strengthened by ~ (fin native testimony as to what he did, and the question was necessarily for the jury.

The judgment is affirmed.