
    McWilliams v. Keim et al., Receivers.
    Where a railroad is so constructed that a traveler, approaching a public crossing, cannot see the track in one direction until within eight feet of the track, and then only for a distance of some four hundred feet, it is a question for the jury, in an action for damages for injuries caused by negligence in running a train by the railroad, whether or not the plaintiff was guilty of contributory negligence, where he stopped some thirty feet from the track, looked down the track, listened, hut did not look up the track, in which direction the view was obstructed, looked at his watch, to see if a regular train was due, and drove on, the crossing being in the open country where signals could he readily heard.
    
      May 25, 1888.
    Error, No. 69, July T. 1888, to C. P. Northumberland. Co., to review judgment of compulsory non-suit in an action on the case, at Sept. T. 1885, No. 297. Trunkey, J., absent.
    This action was brought by John S. McWilliams against Geo. deB. Keim and Stephen Caldwell, Receivers of the Philadelphia & Reading R. R. Co., lessee of the Shamokin, Sunbury and Lewis-burgh R. R. Co., to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant.
    Plaintiff’s evidence appears to be fairly stated by counsel for plaintiff in error, in their paper book, to the following effect, at the trial before Cummin, P. J., of Lycoming County, specially presiding:
    The Shamokin, Sunbury & Lewisburg R. R. Co., in building their road in 1882 and 1883, crossed, nearly at right angles, the old Reading turnpike, a much traveled public road, near Paxinos. In approaching the public road from the south, there -was a deep, long ■cut running into a high fill, just after the public road had been crossed. The company changed and lowered the bed of the public road and made a grade crossing so constructed that the traveler on the public road would descend to the track in either direction. In approaching the crossing from the west, the track to the southward could not be seen from any point on the public road until the traveler was within eight feet of the first rail. When one sitting in a carriage came to this point, the head of the horse would be over the first rail and one could see up the track only four hundred feet, because of the track curving in the ciit; and, standing on the track, ■one could see only three hundred and fifty-five feet.
    On July 4th, 1884, the plaintiff, a man fifty-nine years old, was 'approaching this crossing from the west in a buggy. His wife was with him and he had a gentle horse. He drove down to within about thirty feet of the track, thus bringing his horse about twenty feet from the track, and stopped to ascertain if it was safe to cross. At this point he could have seen a short distance up the track to the south had not the defendant piled ties on the bed of the abandoned turnpike which entirely obstructed the view to a point within eight feet of the track. It was in the open country and there was no noise to interfere in any way with his hearing signals of an approaching train. He knew that the crossing was dangerous, having passed ■over it hundreds of times. Knowing the time of the trains, plaintiff took out his watch to see if any were due, and, finding that none were due, he and his wife both listened three or four minutes, but heard nothing. He looked down the track, but not up, as the view was obstructed; nor did he get out and go forward. Hearing and seeing nothing, he drove down upon the track. Just before starting, he said to his wife: “ This is the most dangerous crossing that the Reading Railroad Company has, and I expect some day to hear tell of somebody being killed here.” When he came to the point eight feet from the track and with his horse’s front feet over the first rail, being the earliest moment that he could see up the track, defendant’s train, consisting of an engine and one car, suddenly dashed down upon them at the rate of thirty-five miles an hour. He attempted to pull his horse back off the track, but failed in doing this by reason of the improper conduct of two men on the cow-catcher. These men frightened his horse, causing it to jump upon the track, where it was caught by the engine and carried down the track some five hundred and ninety-five feet and killed. Plaintiff and his wife were thrown a distance of sixty feet or more, down over the embankment, from which he sustained injury. A large number of witnesses testified for plaintiff that there was no ringing of the bell, blowing of the whistle or other signal of the approach of the engine to the crossing.
    At the close of plaintiff’s testimony the court below entered a compulsory non-suit, relying upon Pa. B. P. Co. v. Beale, 73 Pa. 504.
    A motion to take off the non-suit was overruled, the court relying upon Pa. R. R. Co. v. Beale, 73 Pa. 504; Cent. R. R. v. Feller, 84 Pa. 226; Reading and Columbia R. R. Co. v. Ritchie, 102 Pa. 425; and Allen v. Pa. R. R. Co., 11 Cent. R. 207.
    
      The assignments of error specified the action of the court, 1, in entering a compulsory non-suit; and, 2, in overruling the motion to take it off.
    
      P. A. Mahon and C. R. Savidge, for plaintiff in error.
    The traveler should stop, look and listen. He should look where he can see, if he can find a safe place. Schum v. Pa. R. R. Co., 107 Pa. 8; Pa. & N. Y. Canal & R. R. Co. v. Huff, 7 Cent. R. 640. But, if there is no such place, and he cannot see from the point of crossing a sufficient distance to make it of any practical use for him to get out and go ahead and return again to bus carriage, then, of necessity, he must depend upon his sense of hearing. The “ stop, look and listen ” rule is rather to afford facilities for hearing than seeing. A traveler can see as he goes, but to hear fully he must stop.
    Nor would it have been prudent for plaintiff to have led his horse. • He would then have been killed outright, as his horse was. One cannot manage a horse as well by leading as by driving. It is contrary to all observation that prudent men in such circumstances would attempt to do so.
    To sustain this non-suit, the court must hold that, when the traveler cannot see the track until his horse is over the rail, it is negligence per se for him not to get out and lead his horse across. This rule must bind all or none. Must a woman alone in her carriage ? Must the cripple % Must the man of eighty years ? If not, where is the dividing line ?
    In R. R. Co. v. Beale, 73 Pa. 504, Beale did not stop at all. Justice Sharswood did not say that it was negligence per se for a traveler not to get out and lead his horse. It was, at most, a dictum modified by him in R. R. Co. v. Ackerman, 74 Pa. 265, immediately following.
    
      In Allen v. R. R. Co., 11 Cent. R. 207, the Company was not allowed to whistle, which was known to the traveler, and the constant noises of manufactories and machinery drowned the sound of the bell, or other signal, and prevented its being heard at the crossing. For Allen to listen was a vain thing and ne knew it. If he had gone ahead and looked, he could have seen up the track more than one thousand feet, which he also knew, and being in a town where trains did not run rapidly, he would have had time to go back and take his team across in safety.
    In the Feller case, the traveler passed a point at which he could see and stopped where he could not see, and even then stopped only “ momentarily.” And, in all the cases cited, the traveler, by going ahead, could have seen a great distance' along the track.
    This case is almost identical in its facts with Ackerman v. P. R. R. Co., 74 Pa. 265, where it is said the case was properly left to-the jury.
    
      S. P. Wolverton, with whom was L. H. Kase, for defendant in error.
    When a traveler on a public highway is well acquainted with the dangerous character of a railroad crossing, and knows that he cannot, by reason of the location, see an approaching train, there is imposed upon him the duty of exercising the utmost care and caution, and if, by reason of the peculiar location, the traveler can not see the track by looking out, he should take other precautions for his safety, and, if necessary, lead his horse past the dangerous point. Pa. R. R. Co. v. Beale, 73 Pa. 504; Central R. R. of N. J. v. Feller, 84 Pa. 226; Reading and Columbia R. R. Co. v. Ritchie, 102 Pa. 425; Allen v. Pa. R. R. Co., 11 Cent. R. 207.
    In Pa. R. R. Co. v. Ackerman, 74 Pa. 265, Sharswood, J., says: “We adhere to that decision [R. R. v. Beale] ; that the track cannot be seen from the road, is no reason why the traveler should not stop and listen, approach the track at a slow walk, and, if he has reason to fear from his horses taking fright, get out of the wagon and lead them by the head until he comes to a point where he can be sure that it is safe to cross.”
    Oct. 1, 1888.
   Sterrett, J.,

In any view that can be taken of the evidence in this case, it is clearly insufficient to warrant a judgment of non-suit. Instead of establishing the fact of contributory negligence, of which the judgment is predicated, the evidence tends rather to prove that plaintiff exercised all the care and precaution, in approaching the railroad crossing, that could be reasonably required of any one under the circumstances, and if it had been submitted to the jury, they doubtless would have so found; but, whether they would or not, the case was clearly for the jury and not for the court. Assuming the evidence to be true, it makes out a case of negligence, on the part of those in charge of the irregular train, in approaching an admittedly dangerous crossing at a high rate of speed, and without any warning whatever.

Judgment reversed and procedendo awarded. A. B. W.  