
    In the Supreme Court of Pennsylvania. Western District.
    
    PENNSYLVANIA RAILROAD Co. v. CHRISTIAN ACKERMAN.
    A person in crossing a railroad track in addition to stopping Iris wagon and listening is not obliged to get out of his wagon and go on the crossing, to see it a train is coming, He is bound only to do what an ordinarily prudent and cautious man would do.
    Error was assigned in the answer of the court below to plaintiff’s in error third point, viz : “If the jury believe that the driver, by reason of the cars standing on the siding, and in the position described by the witnesses, could not see the approach of the train to the crossing, and that the position of the cars rendered passing over the main track more dangerous than if they had not been there, then he was in law bound to use more care and caution; and if, by getting out of his wagon and going on the crossing, he could have discovered the approach of the train, and thereby avoided the collision, and did not do so, then the plaintiff cannot recover. ”
    Answer of the court:
    The first branch of this proposition is affirmed; as to the latter part of it, we submit to the jury to say whether, under the circumstances, a man of ordinary prudence and caution would not have got out of his wagon and approached the track at the head of the horses until he was in a position where he could look along the track far enough, to see that he was in no danger from an approaching train. If, under the circumstances,, an ordinarily prudent and cautious man would have done so, it was the duty of the plaintiff’s driver to do so, and if his neglect to do so contributed to the injury complained of, the plaintiff cannot recover.
    As we have said, it is the duty of a party approaching a railroad-crossing to pause, look, and listen in order to satisfy himself that there is no danger from an approaching train.
    The point at which he should pause and look and listen will depend on circumstances. If the view is unobstructed, he may exercise these precautions without teing very close to the track. If the view from his approach is obstructed, he should place himself in a position where he could satisfy himself that there was no danger.
    This is doing nothing more than an ordinarily prudent and cautious man would do. By this rule it must be determined whether the driver did his duty or not.
   Opinion delivered October 20, 1873, by

Sharswood, J.

There is no subject which, in my judgment, more loudly calls for legislative regulation than that of railroad- crossings at grade. We are far behind Great Britain and the countries on the continent of Europe in the precautions required to prevent those fearful accidents to passenger trains from collisions which have produced the- loss of so many valuable lives, accompanied with such horrible suffering from mangled,limbs and,bodies. The judicial decisions of the courts, and of this court in particular, have gone as far as they could in requiring the utmost care on the part of the servants of the',railroad companies to give notice of the approach of trains, and the like care and caution to travelers in attempting to cross. More particularly is this true, either in approaching or passing through populous towns or cities.

- If the .evidence given by the plaintiff below was to bé believed, the railroad company in the case before us was guilty of very gross negligence. It was a dark, foggy morning, with snow on the track, which deadened the usual rumbling sound of a moving train. They were going, even according to their own acccount, at a much greater speed, than was allowed by the ordinance of the city of Allegheny, through whose.streets they were passing. They sounded no whistle, and if they were ringing a bell, it could only have been at intervals, not continuously. Too.many entirely indifferent witnesses testified that they did not- hear a bell, to lead the mind to any other conclusion. This particular crossing was at the time So obstructed by cars on a siding, that the view of the track could not be had until the traveler was directly upon it. One witness testified that a person could not see up the track without getting out on the middle of it. This resulted, as he said, from a tannery, which stood out in the way, and from the manner in which the cars stood on the siding, one car standing partly out on the street.

" On the other hand, the driver of the wagon, the horses of which were killed, according to his testimony, did all he could in the way of precaution, without incurring imminent danger of his own life. He stopped within ten steps of the crossing and listened, but heard nothing. If he had got out and lead his horses on the track, the result would have probably been the loss of his own life, as well as that of the horses. It is not to such a¡ case that the opinion and decision in Pennsylvania R. R. Co. v. Beale, 21 Pittsburgh Jou. 11; 30 Leg. Int. 232 applied. We adhere to that decision, that the fact 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 his wagon and lead them by the head until he comes to a point where he can be sure that it is safe to cross. It is negligence in a railroad company to have such a crossing so obstructed as this one appears to have been, but this does not dispense with the necessity of extreme precaution on the traveler, if he was acquainted with the nature of the locality. The same strict rule cannot be held to apply to a stranger to the country. In-d'eed, one of the regulations which ought to be made by legislative authority, should be, that the usual notice on country roads, “Look out for the Locomotive,” should be at a point where the approaching train on the track can be seen in either direction; and as to streets in a city, there should be a flagman at every crossing. The . point whioh was put-by the defendants below to the learned judge, was two broad under the evidence of the case, and he would have been guilty of error if he had affirmed it without qualification. He left it to the jury to say whether the servant of the plaintiff had done all that a prudent and cautious man could do. If the view from his approach is obstructed, he should place himself in -a position where he could satisfy himself that there was no danger. Whether he could have done this was a question of fact for the jury, and was properly left to them. - Judgment affirmed.  