Hudson v. Lehigh Valley Railroad , 54 Pa. Super. 107 ( 1913 )

Opinion by

Henderson, J.,

The appellant complains of the refusal of the court below to give binding instructions for the defendant or to enter' judgment non obstante veredicto. The defense presented at the trial was that the evidence did not show negligence on the p‘art of the defendant and that the plaintiff’s case disclosed his own negligence. The facts are not complicated and may be briefly stated: The plaintiff was riding on a bicycle on the sidewalk along Dana street in the city of Wilkes-Barre across which street the tracks of the defendant company are laid; a safety gate is located at the crossing a projecting arm on which extends over the sidewalk when the gate is down; the gates were raised and lowered by a watchman who occupied a station from which he also operated the safety gates on the other side of the crossing maintained by the Pennsylvania Railroad Company whose tracks are parallel to those of the defendant and in close proximity thereto; the accident occurred in the middle of the forenoon as the plaintiff was passing under the safety gate at the east end of the crossing and was caused by the dropping of the gate arm on him as ■he was about to pass over the tracks; as shown- by the plaintiff’s evidence he was moving slowly and looking and listening for approaching trains; he observed that the gate was up and not hearing or seeing any moving engine or car he proceeded along the street; the gate keeper saw the plaintiff approaching the track when the latter was about forty feet from the gate but turned and looked in another direction thereafter and paid no further attention to him; hearing what he understood to be a signal to close the gates he lowered the gate over the walk where the plaintiff was riding and as a result a very serious injury was sustained by the plaintiff. It was asserted by the gate keeper in his testimony that the gate was lowered before the plaintiff reached it, but the jury was satisfied as it well might have been from the evidence that the accident occurred in the manner stated by the plaintiff. It was not alleged that the' apparatus for lowering and raising the gate was not in good working order or that there was any difficulty in controlling the movement of the gate from the position and-with the facilities which the .gate keeper had. It was manifestly his duty to lower the gates with due regard to the safety of persons who might be on the street or the sidewalk and when as in this instance it was known that a traveler was approaching the gate the full duty of the watchman was not performed when he lowered it without observing whether it was about to fall on a passer-by. The drop of the gate could easily have been arrested, and it was a question for the jury under the evidence whether the watchman exercised such care as the situation demanded. To hold as a matter of law that he owed no duty to those passing on the street but might on a signal to close the gates permit them to fall on anyone happening to be there would establish a rule in contradiction to the general doctrine of the exercise of care which has been established in this state by many cases.

The question of the plaintiff’s contributory negligence we also regard as one to be disposed of by the jury. If the plaintiff exercised care in observing the position of the gate and the condition of the tracks over which he was about to pass and was moving at the speed which is shown by his testimony it cannot be said that he was proceeding without the exercise of care. The rule declared in Penna. R. R. Co. v. Beale, 73 Pa. 504, and in numerous later cases, which holds that the failure to stop immediately before crossing a railroad track is negligence per se was only intended to apply to those risks which arise from the passage of cars over the crossing. There is no reason why a traveler should stop in the presence of a safety gate so far as danger from the gate is concerned. Seeing a gate in an elevated position he would be in no better situation to determine whether it was likely to fall on him if he stopped to look at it than if he observed it while he was moving along. The plaintiff testified that there was no sound of car or whistle as he approached the track and no apparent reason for lowering the gates. The watchman alleged that he received a signal to lower although the testimony for the plaintiff was that no car passed over the crossing at that time. Conceding that the signal was given from a locomotive not then in motion, as the watchman admits, to close the gates, there was nothing to prevent him from doing this with deliberation and care. The fact that the gate was open was a circumstance bearing on the care to be exercised by th'e plaintiff as it was an invitation to him to cross: Roberts v. D. & H. Canal Co., 177 Pa. 183.

The case lacks the clearness and certainty which would justify the determination that negligence of the defendant did not exist or that the plaintiff is chargeable with contributory negligence. It was, therefore, a case for the jury.

The judgment is affirmed.