Слике страница
PDF
ePub

was on that part of the embankment, "ten feet in width from the outer or northern rail," that was used by the public as a footpath, and not on the part in actual use by the railroad company. The evidence, as we have shown above, does not sustain the contention. The uncontradicted testimony shows that as Kaseman proceeded along the embankment he stumbled over the switch rod, and continued to run on the ends of the ties until he fell into the open space within the line of the embankment. It therefore does not lie with him or the plaintiff to allege that he was not upon a part of the embankment in actual use by the company in the operation of its road when he received his fatal injuries.

To support the position that the embankment, or the part of it north of the railroad tracks, was a permissive highway, along which the deceased had the right to pass to the depot, the plaintiff cites and relies on Railroad Co. v. Troutman (Pa.), 11 W. N. C. 453; Railroad Co. v. Lewis, 79 Pa. St. 33; and Taylor v. Canal Co., 113 Pa. St. 162, 8 Atl. Rep. 43. But these cases are clearly distinguishable from the case in hand. Kaseman at the time he received his injuries was not attempting to cross the right of way of a railroad company by a well-known path constantly used by the public, as was the case in Railroad Co. v. Troutman and in Taylor v. Canal Co., but he was using the tracks of the railroad company for passing longitudinally from Third to Second street. In other words, he was using the railroad bed between those streets as a public highway, as appellant claims a part of the embankment to be. Railroad Co. v. Troutman holds that a person crossing a railroad track by a common and well-known footpath, used by the public for many years without let or hindrance on the part of the company or its employees, cannot be regarded as a trespasser; and in Taylor v. Canal Co. it is held that, when it is shown that the footpath across the railroad track has been habitually used by the public for many years without objection, it is a question of fact for the jury to determine whether the railroad company has not acquiesced in such The question in Railroad Co. v. Lewis was, as said by Chief Justice Agnew, delivering the opinion of the court, "whether a railroad company may enter into the outskirts of a populous city at a high and dangerous rate of speed, even though it be upon its own track, where the people have no right to be." These cases, therefore, are not authority for the position that a person using the tracks of a railroad company under the circumstances of this case is not a trespasser, or that the question is for the jury.

use.

We think, however, that the case at bar is more nearly allied to the class of cases represented by Moore v. Railroad Co., 99 Pa. St.

*

301, and Railroad Co. v. Cadow, 120 Pa. St. 559, 14 Atl. Rep. 450. In the last case it is held that when it was uncontroverted that the plaintiff, a cripple with a stiff leg, left a safe path along the sidewalk of a street, to pass hastily, in the night time and without a light, diagonally over a railroad crossing, the condition of which he did not know, and stumbled among the rails and plankings, fell, and was injured, it was error to refuse binding instructions that the verdict should be for the defendant: In Moore v. Railroad Co., the present Chief Justice, delivering the opinion of the court, says: "It was affirmatively established, and entirely undisputed, that the deceased was walking on and along the track at the time of the accident. He was not on the track at a public crossing, nor was he in the act of crossing. It is true that the railroad track at this place was laid upon the bed of a public street, and the right to use it was not limited to the highway or street crossings. But the boy was walking along the track, and not across it, when he was struck. This he clearly had no right to do." In the same opinion the Chief Justice further says: We have so frequently held that in such circumstances [a boy of ten years trespassing on a railroad track] there can be no recovery, that it is unnecessary to quote the authorities. * * They [railroad companies] are not subject to an obligation to take precautions against any class of persons who may walk on or along their tracks." In Railroad Co. v. Hummell, 44 Pa. St. 379, Mr. Justice Strong, delivering the opinion of the court, says, inter alia: "But if the use of a railroad is exclusively for its owners or those acting under them, if others have no right to be upon it, if they are wrongdoers whenever they intrude, the parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it." These authorities are applicable to the case in hand. Whether the deceased met his death by a passing train or by falling into an opening in the company's right of way is immaterial, so far as his right to protection from the railroad company or defendant borough is concerned. The railroad company was at the time of the accident in possession of and using the part of the embankment on which the deceased was injured. It therefore had, as against him and other intruders, the exclusive use of it, and when the deceased entered upon it he became a trespasser. The company owned no duty to Kaseman to span the alley with a footwalk, or to guard it by the erection of barriers to prevent him from falling into it. No such precautions could be exacted of it for his safety. The deceased was clearly guilty of negligence in the manner in which he passed along the embankment after he had entered upon it. Had he exercised reasonable care as he passed

along it, he would not have fallen into the opening at the alley. It was a dark night, and he was without a light. He was a stranger to the community, and not familiar with the railroad bed. Notwithstanding these facts, he made no effort to pursue his way carefully, but ran at a good speed along the ends of the railroad ties "to the very time he pitched over" into the opening at Center alley. It, therefore, he had been rightfully on the embankment, such conduct would have convicted him of negligence, and prevented a recovery for the injuries he received. There was no necessity for Kaseman and his companion taking the route they did take in order to go from the Elks' rooms to the depot. The way they at first evidently intended to go, and should have gone, was west on Market to Second street, and then to the station. The overhead crossing would have enabled them to pass over the Pennsylvania tracks on Third street in safety, and to have reached their destination without incurring the risk of passing along the railroad tracks on Third and Penn streets of a dark night. After they reached the embankment at Penn street, they exercised no greater care for their safety. Instead of going upon the embankment, they could and should have gone along the roadway on the part of Penn street on the north side of the embankment not occupied by the railroad, to Center alley, and there deflected their course so as to reach the station. This simple precaution would have prevented the accident that occurred, and saved a human life.

It is clear, under the facts disclosed on the trial, that the contention of the plaintiff "that, in effect, this embankment, as constructed, was a substituted highway," and "the permissive use of it by all persons passing east and west along Penn street made the defendant responsible for its proper maintenance," cannot be sustained. The deceased in traveling along the embankment was a trespasser on the right of way of the railroad company, to whom neither the company nor the defendant borough owed the duty of protection from danger at the opening at Center alley. He had no right to enter upon the embankment, and was guilty of negligence in the manner in which he traveled upon it. His own conduct would prevent a recovery in this action.

The admission in evidence of the borough ordinance, the rejection of which is the subject of the first assignment, would not have supported the contention of the plaintiff that the embankment was a substituted highway, or that it was used by the public by permission of the railroad company. Hence it was properly excluded. Without the testimony elicited by the defendant on cross-examination, the admission of which is complained of in the fourth, fifth,

and sixth assignments, sufficient facts were developed on the trial of the cause to prevent a recovery by the plaintiff.

The assignments of error are overruled, and the judgment is affirmed.

ELSTON V. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY.

Supreme Court, Pennsylvania, July, 1900.

KILLED WHILE DRIVING ACROSS RAILROAD TRACK-CONTRIBUTORY NEGLIGENCE FOR JURY.— In an action to recover damages for the death of plaintiff's intestate who was killed by one of defendant's trains at a railroad crossing, it appeared that the intestate was driving on a public highway at a point where it was crossed by six tracks of defendant's road; that on tracks 1, 2 and 3 trains were standing on both sides of the crossing, leaving an opening barely wide enough to admit passage of a wagon; that a train was going south on track 5; that plaintiff's intestate stopped on a bridge twenty-five feet from track I and ninety feet from track 6; that he waited for the train on track 5 to pass, and after it had passed looked north and south for the approach of a train and drove between the standing cars when his horses were struck by a train going south on track 6, and he was killed; that he stopped at the usual place to look for trains; that being seated in his wagon, he was not in a position to see the train until his horses were close to or on track 6; that the train was running rapidly on a down grade without giving any signal of its approach. Held, that the question of contributory negligence was properly for the jury, and judgment for plaintiff was affirmed (1).

[merged small][ocr errors][merged small]

driven across bridge, the engine moving at a slow rate, and in trying to es cape the wagon was struck by the engine and plaintiff was thrown out and injured. Plaintiff saw the engine about 300 feet from the approach to the bridge.

In KNOPF V. PHILADELPHIA, WILMINGTON & BALTIMORE R. R. Co. (Delaware, March, 1900), 46 Atl. Rep. 747, where plaintiff was injured at a railroad crossing, there was a verdict for plaintiff for $2,500 for injuries to himself and wagon. The train which struck the plaintiff appears to have been running at a rate of speed in excess of six miles an hour in violation of city ordinances. The jury were instructed that the violation of such ordi

APPEAL from Court of Common Pleas, Luzerne County.

Action by Belinda Elston against the Delaware, Lackawanna and Western Railroad Company for the death of plaintiff's husband. From judgment for plaintiff, defendant appeals. Judgment affirmed. HENRY W. PALMER and ANDREW H. MCCLINTOCK, for appellant. PAUL J. SHERWOOD, for appellee.

FELL, J. The only question raised by the assignments of error is whether a verdict should have been directed for the defendant. The public highway on which the plaintiff's husband was driving is crossed by six tracks of the defendant's road. Tracks 1, 2, 3 and 4, on the west, are sidings used for the shifting and storage of cars.

nance was negligence, and if it was the proximate cause of the injury the railroad company was liable, provided the plaintiff did not contribute to the injury by his want of due care.

In COLLINS ET AL. v. ILLINOIS CENTRAL R. R. Co. (Mississippi, May, 1900), 27 Southern Rep. 837, where a person in trying to head his team off the railroad track which had become frightened by the sound of a train whistle, was struck and killed by a train running at a high rate of speed, above that prescribed by the municipality, and it was shown that deceased could see the train when he started to cross the track, and signals of the train's approach were given, no recovery could be had, as deceased was guilty of contributory negligence. Following R. R. Co. v. McGowan, 62 Miss. 682.

In MACKRALL v. OMAHA & ST. L. R. Co. (Iowa, May, 1900), 82 N. W. Rep. 975, it appeared that "plaintiff, in approaching a crossing from the west, stopped his team, looked, and listened, when 100 feet from the railway, without observing or hearing the train. He then sat down on the north side of the hayrack with his feet in the box below, his back to the north, and his face towards the team, and slowly drove down a descent to the track. From there to within fourteen feet from the center of the track was an embankment, which obstructed his view up to at least twenty feet from such

center. His attention was drawn to the gullies recently washed in the road, though given somewhat to the railroad. Just as the team was going on the rails, he noticed the train coming from the north, only a few feet distant, and he was thrown in the air to the embankment. A the engine was moving at the rate of thirty-five miles an hour, there was no possibility of escape after its discovery, and the evidence tended to show that he saw it at the first opportunity." The defendant appealed from the judgment for plaintiff on the ground of contributory neg. ligence of plaintiff, but judgment was affirmed, the court holding that it was for the jury to say whether plaintiff stopped within a reasonable distance from the track, or was bound, in the exercise of ordinary care, to do so again within the 100 feet.

In KING . CHICAGO, MILWAUKEE & ST. PAUL R'y Co. (Minnesota, May, 1900), 82 N. W. Rep. 1113, it appeared that " plaintiff, while riding in and driving his wagon across defendant's tracks, was run into by defendant's train. As a result, he was personally injured, and the wagon and horses and harness were damaged. Thereafter plaintiff brought an action against defendant to recover for the injuries suffered in his person, and secured a judgment of $1,000. While that action was still pending on appeal in this court (79 N. W. Rep. 611) plaintiff

« ПретходнаНастави »