Keenan v. Union Traction Co. , 202 Pa. 107 ( 1902 )

Opinion by

Mr. Justice Brown,

At the close of plaintiff’s testimony the learned trial judge directed a verdict for the defendant. He could not have avoided doing so in the light of the clear contributory negligence of the appellant. The collision occurred in the country, on the Old York road, upon which the tracks of the appellee are laid. The east rail of the north track, upon which the ear ran into the team, is ten feet from the open gateway of the Hallowell property. The plaintiff testified that, on the day of the accident, he had delivered ice cream at Mr. Hallowell’s residence, and, when leaving the property, stopped his team, a one-horse wagon, inside the open gateway, and that the distance from his horse’s head to the entrance was about fifteen feet; that his seat in the wagon was about ten feet from the horse’s head; that the wagon was a closed one all the way to the front; that he had climbed out on the swingletree of the wagon far enough to get clear of the curtains and look down the road; that, after he had so looked, and there was no car in sight, he climbed back into his wagon, took up his lines, walked his horse out of the premises and did not see the car until he was in the center of the track and his wagon was struck. At the point within the gate where the plaintiff stopped to look — a distance of about thirty-five feet from the track — he had an unobstructed view of 319 feet in the direction from which the car was coming; and there was nothing to obstruct this view until the track was reached.

When the plaintiff stopped within the gateway, and got out on the swingletree to look for an approaching car, because he could not see from his seat in the closely curtained wagon, he exercised proper care; but his misfortune is that he was careful but for an instant, when he should have continued to be watchful until the track, the real point of danger, was reached. If he had continued to look, he could have seen the car, just as those within it saw his team 100 feet in front of it, when the horse was on, or approaching the track. It is not conceivable, that the plaintiff could not have avoided the collision if he had continued to look. Instead of doing so, after he had first looked, and been careful before starting his horse toward the track, he climbed back into his seat, from which he could not see, and drove blindly on, so far as any view to the right or left of him was concerned. The care that he exercised when he got out on the swingletree and looked, counts for nothing, for, when he dropped back into his seat and started, with thirty-five feet intervening between him and the track, he might as well have been blindfolded in an open wagon, for all the opportunity he then had of looking out on either side. Had he leaned forward beyond the curtains, without getting out on the swingletree, and looked, he could have seen the car; and his failure to do so was negligence per se: Wheelahan v. Philadelphia Traction Co., 150 Pa. 187. From the time he started his team through the gateway, he had lapsed into carelessness, in the face of which all our authorities are conclusive against his right to recover. He did not continue to look until he reached the track, and yet that was his duty: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Burke v. Traction Co., 198 Pa. 497; McCracken v. Consolidated Traction Co., 201 Pa. 878.

It is urged that the rule, that one about to cross a street railway track must continue to look until the track is reached, relates only to electric roads in cities, and does not apply to the crossing of such railway tracks in the country, where the views are much more extended, cars pass less frequently, and the obstructions to travel on town streets are not encountered. The answer to this is, that care must always be exercised. The degree required may vary, but want of care under the circumstances is always negligence. It is as much one’s duty to look out for danger in the country as it is in the town. Trolley cars run into wagons carelessly driven, not only on the streets of a city, but on turnpikes and rural roads as well. We have never said that the duty of continuing to look until the trolley or street railway track is reached is not binding upon those driving teams in the country. The same degree of watchfulness may not be required there as on crowded city streets, but it will never be held that there need be no care at all in the country, as there was not in this case after the plaintiff climbed back from the swingletree into his seat in the closed wagon, where he could not see, and started for the danger which he would have avoided, if he had looked.

Judgment affirmed.