45 Pa. Super. 623 | Pa. Super. Ct. | 1911
Lead Opinion
Opinion by
The plaintiff while driving his automobile, in which he had his wife and child with two guests, was run down by a car of the defendant company.
The accident occurred in clear daylight, when the plaintiff and motorman had an unobstructed view of the track for a reasonable distance. The defendant had a double track system located on the northern side of the highway, so as to leave a width of about fifteen feet on the southern side for vehicles. A few minutes prior to the accident the plaintiff was running his automobile parallel with the trolley car, and as it made a stop to take on passengers, he passed the trolley car, and when he was ahead of it about 1,700 feet, his use of the roadway was interfered with by a horse and buggy, and obliged him to turn his machine so as to occupy the near trolley track, in order to get around the buggy. After running on the car track for a distance, which is variously estimated by the witnesses from seventy-five to 125 feet, and when he was opposite to the buggy, the trolley car struck the automobile, forcing it along the track a distance of about seventy-five feet, and then threw it off the track to the side of the road, while the trolley car proceeded about 175 feet, up an incline grade, before it was stopped.
The plaintiff knew the car was following him as he had passed it but a short distance, but did not know the length of time it would remain standing where he left it out of
The testimony was extremely conflicting, and even the witnesses called by the plaintiff did not confirm his statements or estimates as to distances, location or speed, but, under authority of Kohler v. Penna. R. R. Co., 135 Pa. 346, which was a case where there was a serious conflict in the testimony of the plaintiff and one of his material witnesses, the court held “Irrespective of the apparent doubt upon Buckwalter’s testimony, the plaintiff himself made a case for the jury clear of contributory negligence. The
The rule laid down in Trout v. Railway Co., 13 Pa. Superior Ct. 17; Brown v. Traction Co., 14 Pa. Superior Ct. 594; Burke v. Traction Co., 198 Pa. 497; Callahan v. Traction Co., 184 Pa. 425, and many similar cases has not been, nor should it be, relaxed in any degree, but to apply it, the testimony should be of such quality and ch¡aracter as to enable the court to arrive at a legal conclusion without hesitancy or doubt.
The facts in this case make it a close one but it is so on its facts, and not in regard to the law applicable to them.
The case was tried with extreme candor on each side, and was submitted to the jury in a charge so fair and adequate, that defendant’s counsel does not complain of it, save in refusing to give binding instructions to find for the defendant on legal propositions.
The judgment is affirmed.
Dissenting Opinion
dissenting:
Our brother who writes the majority opinion says, “that the facts in this case make it a close one.”
In my opinion the undisputed facts convict the plaintiff of contributory negligence. He had been driving his automobile along the highway in close proximity to one of defendant’s cars which was going in the same direction as the plaintiff. In fact the testimony shows that the trolley car and the automobile ran side and side for a considerable distance when the former stopped to take on passengers. The plaintiff sought to establish by his testimony that the trolley car was running much faster than his automobile. But he admits that they both ran at the same speed for a considerable time and when the trolley car stopped to take on passengers the plaintiff drove his automobile upon the trolley track when he admits that he could not see over 100 feet back along the track. The plaintiff admits that he was running his automobile from fifteen to twenty miles an hour and it is
In the present case it is perfectly clear from the plaintiff’s own testimony that he knew about where the car was when he drove upon the trolley track. It seems to me that what happened was the thing that any sane person might reasonably have anticipated in case the motorman lost control of his car or it ran faster than the plaintiff’s automobile. I think this case, upon its facts, is controlled by Speakman v. Phila. & West Chester Traction Co., 42 Pa. Superior Ct. 558, and cases therein cited.
I would reverse the judgment without a venire.