
    No. 1017
    B. & O. RD. CO. v. KASKY
    No. 20144.
    Supreme Court
    On motion to certify.
    Dock. Oct. 28, 1926,
    4 Abs. 742.
    301. CONTRIBUTORY NEGLIGENCE — Is one who goes upon tracks of railroad company at place where safety gates and a watchman are maintained and neither the gates were down nor the watchman attentive to duty, guilty of contributory negligence when she fails to stop, look and listen?
    Attorneys — H. C. Johnson for Railroad Co.; Fauver & Fauver, and Samuel Deutsch for Kasky; all of Elyria.
   Leona Kasky filed her petition in the Lorain Common Pleas praying for damages for personal injury received by her in crossing the tracks of the B. & O. Rd. in Elyria. The court directed a verdict for the Company upon the close of Kasky’s testimony, which was in brief, that she had just arrived at the crossing in a street car which stopped some 25 feet away and as she got off she looked to the south along the tracks there being an unobstructed view, and when she got close to the tracks, looked also to the north but not again in a southerly direction; and that the safety gates maintained at the point were up and the watchman was paying no attention to his duty.

The trial court directed a verdict in favor of the Railroad Company and upon error to the Court of Appeals, the lower court was reversed, the Appeals Court holding “the general rule that pedestrians traveling along a public street in a city is guilty of contributory negligence as a matter of law if, without stopping, looking • or listening he goes upon the tracks, does not apply to a place where the railroad company has a watchman and safety gates.”

The Railroad Compnay contends in the Supreme Court:

1. That the Appeals Court erred in reversing the lower court because the law holds that a pedestrian must look in both directions before going onto a railroad track and his failure to do so renders him guilty of contributory negligence.

2. That if a person knows or ought to know of the danger at a crossing in time to enable him to avoid it and fails to do so, he cannot recover for his injuries from the railroad company although the latter fails to ring a bell, have gates closed or have a watchman or flagman at the crossing.

3. That a traveler must look and listen for the approach of trains before crossing, and furthermore, that he must look and listen at a place and in a manner that will make the looking and listening effective.  