70 Pa. Super. 352 | Pa. Super. Ct. | 1918
Opinion by
After reviewing the testimony, we are unable to understand how the court below could have done otherwise than direct a verdict for the defendant. If this record does not present a clear case of contributory negligence, then there scarcely could be any such record. The court below, in directing judgment for the defendant, sets forth the facts as developed by the appellant and the law applicable thereto. We can add nothing to what is there so well considered. Counsel, with some earnestness, urge that the appellant should not be convicted of contributory negligence for the reason that when he attempted to clear the tracks the wheels of his wagon slipped along the rails and refused to leave. While making this effort, his wagon was struck. This was not the cause of the accident and the appellant submits no evidence of any' extended effort to get the wheels from the tracks. He does not know, nor does he have any idea, how far they slipped; “the wheel was on the rail and it was sliding.” “I could not tell whether it slid six inches or not; there was no time.” His statement shows that his horse had scarcely cleared the track when his wagon was struck, and as he was riding with one wheel outside of the tracks it indicated that the slipping had nothing whatever to do with the accident. Moreover, he had a clear view of the oncoming car for eleven hundred and fifty feet. To re-. cover under such circumstances, there must be evidence which plainly shows that the accident developed from conditions that the appellant could not foresee or control. These conditions must be of such character as to appear reasonable and likely to occur when all the circumstances surrounding them are taken into consideration. In the present case, the condition of the rail and the adjoining brick, the width of the wagon tire and the depth of the flange below the topmost part of the rail and
The judgment of the court below is affirmed.