Warner v. Peoples' St.-Railway Co.

21 A. 737, 141 Pa. 615, 28 W.N.C. 3, 1891 Pa. LEXIS 1112

• Court: Supreme Court of Pennsylvania
• Decided: April 20, 1891
• Docket: No. 83
• Status: Published

Opinion

OPINION,

Me. Justice Mitchell :

The place of the accident was in the public road, where both parties had a right to be, and where each, therefore, was bound to be on the lookout for the other: Schmidt v. McGill, 120 Pa. 405. But the right of the defendant’s cars was superior. They were confined to the track, and on that they had the right of way, to which the use by other parties, on foot or otherwise, was of necessity subordinate. The plaintiff, on the other hand, could use the whole road, and which part of it she took was merely a matter of convenience. That defendant in clearing its track from snow for the passage of its cars had made it also more convenient for plaintiff to walk on, could not be turned to its disadvantage, or enlarge the plaintiff’s rights over that part of the public road. They were still subordinate to defendant’s right of way: Jatho v. Railway Co., 4 Phila. 24; Thomas v. Railway Co., 132 Pa. 504; Adolph v. Railway Co., 76 N. Y. 530.

These being the respective rights of the parties, the plaintiff came to a point on the road where the defendant’s track ran through a snow-drift, for a distance estimated by plaintiff herself at half a block, where the snow had been removed from the track, leaving a passage just wide enough for the cars, with vertical walls of snow two or two and a half feet in height. It was plainly a place of danger for a foot passenger, in case a car should reach it, and therefore a place for unusual caution and vigilance. But the rest of the road was, as plaintiff testified, ankle deep in snow and slush, and plaintiff took the more dangerous, but more comfortable way. She says she looked just before she went into the cut, to see if there was ■ a car behind her, and saw none. But on this, the pivotal point of the case, the uncontradicted evidence is overwhelmingly against her. The drift was at the top of a hill or rise, from which there was an unobstructed view in the direction from which the car was coming, fixed by plaintiff’s own witnesses at quarter to half a mile, and up this hill the car came at a moderate speed, with bells that could be heard for forty rods. Yet plaintiff herself says she had got but a little way into the passage before the car came upon her. It is unquestionable that the car must have been plainly in sight at the time she entered this dangerous path, and if she looked at all it must have been a mere heedless glance, which all the evidence shows was not an adequate performance of the duty the situation required. The case belongs clearly to the class of Carroll v. Railroad Co., 12 W. N. 348, and required the court to pronounce plaintiff negligent as matter of law. The defendant’s second point should have been affirmed.

As this point is conclusive of the case, it is not necessary to discuss the others.

Judgment reversed.