Opinion bv
Mb. Justice Gbeen,The facts of this case do not seem to be involved in controversy. -The defendant operates a line of street cars passing through Washington street, in the city of Allegheny. The plaintiff’s team, in charge of Orr, the driver, was engaged in hauling along C street, in the same city. In going along C *224street to his destination, Orr’s route crossed Washington street, and the defendant’s tracks therein, at right angles. When he reached the intersection he neither stopped nor looked, but drove' directly upon the defendant’s track. When in this position, he looked up, and saw the car just upon him. There was no time to escape. His wagon was crushed and he was injured.
This action is brought by his employer, who is affected by the contributory negligence of his employee. The question upon which the case turned in the court below was, whether the evidence of the plaintiff established contributory negligence in Orr, the driver. Upon this subject the learned judge instructed the jury that there was no rule of law that required the driver to “ stop, look and listen,” but that it was for them to determine what it was his duty to do, and whether he actually did it on this occasion. They were thus left without any rule of law to apply, at liberty to make one to suit themselves for the purposes of this case, which the next jury might change to suit themselves, or disregard altogether. We cannot agree to this. The street railway has become a business necessity in all great cities. Greater and better facilities and a higher rate of speed are being constantly demanded. The movement of cars by cable or electricity along crowded streets is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways, and those using the streets in the ordinary manner. It is the duty of the railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of their approach to crossings and places of danger. Their failure to exercise the care which the rate of speed and the condition of the street demand, is negligence. On the other hand, new appliances, rendered necesssary by the advance in business and population in a given city, impose new duties on the public.
The street railway company has a right to the use of its track, subject to the right of crossing by the public at street intersections ; and one approaching such a place of crossing must take notice of it, and exercise a reasonable measure of care to avoid contact with a moving car. It may not be necessary to stop on approaching such a crossing, for the rate of speed of the most rapid of these surface cars is ordinarily from six to nine *225miles per hour; but it is necessary to look before driving upon the track. If, by looking, the plaintiff could have seen and so avoided an approaching train, and this appears from his own evidence, he may be properly nonsuited: Marland v. R. R., 123 Pa. 487. It is in vain for a man to say he looked and listened who walks directly in front of a moving locomotive. An injury so received is due to his own gross carelessness: R. R. v. Bell, 122 Pa. 58; Moore v. R. R., 108 Pa. 349. Orr testifies that he knew the crossing, that he listened for the sound of a gong, but, not hearing it, drove on the track, and was instantly struck. He drove in front of a moving car so near to him as to make a collision inevitable. If he had looked, he could have seen the car and stopped, and the accident would have been avoided. Not to do so was, in the language of R. R. v. Bell, “gross negligence,” and justly defeats the action brought to recover from another damages that were self-inflicted. It is the duty of one about to cross a street railway track to look, so that he may not walk directly in front of a moving car to be struck by it. The first assignment of error is sustained. So, also, are the second and third.
The judgment is reversed.