251 Pa. 517 | Pa. | 1916
Opinion by
This is an action of trespass brought by the plaintiff to recover damages which he alleges he sustained by the negligence of the defendant company. The plaintiff lived in Allegheny City. On the afternoon of May 30, 1911, he visited some friends at Millvale, and, about 1:30 a. m. of the following morning he started to walk west on East Ohio street on his return home. He was not familiar with the street. The defendant operated a double track street railway on the street. The plaintiff testified that at first there was a bad boardwalk, and he started to walk on the east or outbound track and after walking some ten or fifteen minutes, he saw a car approaching on that track, that he then looked to see whether a car was coming on the inbound track, and not seeing one, passed over to that track, and, after walking from ten to thirty yards he was struck in the back by a west-bound car, knocked from the track and badly injured. He says that after he was on the inbound track he looked back two or three times to see if a car was approaching him from the rear and saw none. He further says that the car which struck him carried no headlight, that he heard no bell, and was about to look back again when he was struck. It appears from the testimony there is a hill on the side of the railway to the plaintiff’s right as he approached the city, and on the other side, an embankment which extended down to railroad tracks. He says that when he was on the outbound track and saw the car approaching him he could see some 200 feet and
The defense was that the plaintiff was lying on the track at the time he was struck by the car and that there was a reasonably safe sidewalk at the place where the accident occurred which he should have used instead of the defendant’s car tracks. This raises the single question in the case and, if the evidence of the defendant had been believed by the jury, it should have been answered in the affirmative and a verdict rendered for the defendant. The learned court below instructed the jury that if there was a reasonably safe place to walk outside the company’s tracks, the plaintiff was bound to walk there. The verdict was for the plaintiff and the court in banc refused to enter judgment non obstante veredicto for the defendant.
We are not convinced that the learned court below erred in its final disposition of the case. The weight of the evidence, we think, was with the defendant. It may be conceded that the plaintiff’s own testimony was apparently conflicting as to what point on the railway the accident occurred, and whether there was a reasonably safe sidewalk which he could have used at that place, but it was for the jury to reconcile the apparently inconsistent parts of his testimony and determine which should have credence. As said by Mr. Justice Dean in Strader v. Monroe, 202 Pa. 626, 633: “In trials of fact, if it were required that all testimony should be consistent, either with itself, or that of other witnesses, but few cases would reach a jury.” The plaintiff testified that he had passed beyond the houses and stone wall when he was struck, that at the place at which the accident occurred the road was very bad, that there was no
The testimony of the defendant’s witnesses was, in effect, that there was a continuous pathway on the north side of the tracks, wide enough to walk on and let a car on the trolley tracks pass, which was in part concrete, part wooden boardwalk, and part dirt pathway, all the way from Bennett Station to Filbaugh street near the American Brewery. This testimony tended to show that the accident occurred three or four blocks east of the brewery, in front of a stone wall and near an iron pole where there was a board sidewalk. If the accident did occur at this point, it is clear from the exhibits in evidence that there
Where the credibility of witnesses is in issue the case is always for the jury. The preponderance of evidence depends upon the credibility and not the number of witnesses: Allen v. Line, 11 Pa. Superior Ct. 517, and we will not reverse, though we may think the weight of the evidence is with the appellant: Waters v. Burgess, 2 Mona. (Pa.) 570. If the accident occurred, as claimed by defendant, in front of the stone wall, and the photographic exhibit correctly shows the conditions existing there at the time, it is apparent that there was a sidewalk which could have been used by the plaintiff, and it follows necessarily that he was negligent in not doing so. On the other hand, plaintiff’s story was sufficient to warrant the jury in finding that the accident occurred at another point along the road where there was no reasonably safe pathway or sidewalk which the plaintiff could have used in returning to the city and he was required' to walk on the railway tracks. This highway seems to run through a rough and partly built-up country, and at some points at least the railway tracks occupy all the traveled portion of it, if not the entire street. Along the south side of the highway there appears to be an embankment and no sidewalk. Whether or not, therefore, the accident occurred at a point at which there was a reasonably safe sidewalk which the plaintiff could have used, we think was, under all the evidence, for the jury.
The judgment is affirmed.