Ehrisman v. East Harrisburg City Passenger Railway Co.

Contributory negligence—Street railways—Stop, look and listen. It is the duty of a traveler, about to drive across a street railway, to stop, look and listen at the edge of the track, and his neglect to do so is negligence per se. , In the case of steam railroads, a question sometimes arises as to the proper place to stop, look and listen. Where there is a fair doubt upon this question, it must be submitted to the jury. No such case arises in the case of city railways. In this case, plaintiff was guilty of contributory negligence in driving some sixty feet along the track before crossing, after having looked. Duties of street car companies and travelers. While street railways have not an exclusive right to their tracks, their rights are superior to those of the traveling public. Their cars have the right of way and it is the duty of the citizen, whether on foot or in vehicles, to give unobstructed passage to the ears. On the other hand, it is the duty of the companies to see that their motor-men shall be on the alert, not only at street crossings but everywhere upon the tracks to see that citizens are not run down and injured: Per Paxson, C. J.

Appeal, No. 10, May T., 1892, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1892, No. 312, on verdict for plaintiff, in trespass for personal injuries, caused by the alleged negligence of defendant. The evidence was to the following effect, on the trial, before Simonton, P. J.: On the forenoon of a clear day in August, plaintiff was going down south Second street, Harrisburg, with his horse and wagon loaded with produce and truck. The electric street railway of defendant company was located on this street, and at that time extended to Hanna street, about a half mile below Mulberry street. About 800 feet below Mulberry street, the Reading railroad have an overhead bridge, and about 100 feet below the bridge the street railway makes a short curve to the west into Vine street. Immediately beyond this curve, crossing said Second street diagonally, are several tracks of the Pennsylvania railroad, over which were passing and repassing, at the time, two engines shifting cars into sidings. Plaintiff testified -that seeing that he could not go on with safety, that he might get caught between the shifting railroad cars and the street car at the curve, he determined to pass over the street car track immediately below the bridge, to the other side of the street, and there tie his horse. Before passing under the bridge he leaned out of the side of the front part of the wagon and looked up Second street as far as he could, which was as far as Mulberry street, a distance of about 800 feet (the foliage of the overhanging trees preventing a more distant view), and could see no car; none was in sight, nor could he hear anjr. Plaintiff testified that as there was but one ear running on that branch of the road at that time, he thought the car was beyond the curve, and might come out of Vine street at any moment, and therefore, having looked up, he now looked downward to the curve. After driving on about 60 feet he turned to cross the tracks obliquely. When his horse was fairly on the track he heard the gong but kept looking for the car towards Vine street, and before he got over he was struck and injured. Plaintiff’s witnesses estimated that the car was running from 12 to 20 miles per hour. The evidence was conflicting as to the distance plaintiff went after looking and listening before he tried to cross, whether he could have seen the car when he looked, how far he could see, and the rate of speed and the time within which the car ran any given distance. The court left the question of contributory negligence to the jury, saying, inter alia: “ If a man passing along a street railway track, looks up the track and does not see a car, and then drives along the track for such a length of time that in the ordinary course of events, with a car running at an ordinary rate, it would, reach the point where he does undertake to cross, before, or just at the time, he undertakes to cross, he is negligent, he is not acting as a man of ordinary prudence would act. If he looks up the track, however, and sees a certain distance, and does not spend, before he crosses the track, enough time for a car to reach that point, running at as high a rate as he is bound to assume it may be running, then the jury might say he was not negligent; and that is why the question of the rate of speed the car was running enters as one of the elements into this problem—the question of the rate of speed the car was running, the question of the time the plaintiff took after he did look before he undertook to cross; and those are matters that the jury must consider in arriving at a conclusion in this case.” Plaintiff presented the following points, inter alia: “ 1. If plaintiff was injured by reason of the reckless and too rapid running of defendant’s cars, and plaintiff acted as another ordinary prudent person would under the circumstance, the verdict must be for plaintiff. Answer: That is affirmed, gentlemen, with the qualification that is not stated here of another fact that would be necessary to be found, and that was that the injury resulted to him from the too rapid running of the defendant’s cars. [1] “ 4. All the circumstances and surroundings must be taken into consideration in determining whether there was contributory negligence. Answer: That is correct. [2] Defendant’s points, which were refused, were as follows: “ 1. It clearly appearing by the affirmative testimony of the plaintiff that he drove his wagon on the track of the defendant immediately in front of the moving car, he was guilty of contributory negligence, and cannot recover in this case. [3] “ 2. The plaintiff having testified that he did not look before driving across the railroad track (not a public crossing), was guilty of contributory negligence, and even if he did look when sixty feet away from the place he attempted to cross, would not be relieved from the negligence aforesaid, and the verdict must be for the defendant. [4] “ 3. The plaintiff was well acquainted with the locality and track at that place. He knew there was no public crossing there. Hence, the greater reason that he should exercise the utmost care and caution by looking and listening before undertaking to cross. His own evidence shows that he did not look for sixty feet before he made the turn, and that the street was free from all obstruction. If he had looked and listened, the accident could not have happened. It was his plain dutjto have done this before driving upon the track, and the defendant is entitled to an unqualified instruction that the plaint-, iff cannot recover in this case. [5] “ 4. The failure to stop, look and listen, before crossing a railroad track, is negligence in law. As the plaintiff’s evidence shows that he violated this unbending rule the verdict must be for the defendant. [6] “ 5. No circumstances have been proved in this case excusing the negligence by the plaintiff in omitting to obey the requirement of the law. His omission was not merely evidence of negligence, but negligence per se. [7] “ 6. The plaintiff having been warned of the approach of the car by the usual signals, and having neglected the warnings, cannot recover. [8] “ 7. Upon the uncontradicted evidence, and the whole evidence in the case, the verdict must be for the defendant.” [9] Verdict for plaintiff for $1,500. A motion for a new trial was overruled, in an opinion, by the court below, saying that the case was a close one. Judgment was entered on the verdict, whereupon defendant appealed. Errors assigned were (1-9) answers to points, -quoting them as above.