Cupps v. Traction Co.

13 Pa. Super. 630 | Pa. Super. Ct. | 1900

Lead Opinion

Opinion by

William W. Porter, J.,

The only specification of error is the refusal of the court below to direct a verdict for the defendant as requested by the point of charge. There is little discussion in the arguments directed to the allegation of negligence on the part of the defendant. The appellant urges that the negligence of the plaintiff contributed to the accident which caused his injury, and claims that there should be a reversal of the judgment.

The plaintiff, with his wagon loaded with lumber, drove out of the private grounds of Mr. Miller. The driveway was a declivity. The plaintiff locked the rear wheels until the wagon reached the gutter of Fifth avenue. He then descended, partially loosened his brake and climbed up on the load upon his wagon. He looked up the street and down for the cars. He says: “ There was one car leaving Bidwell street, going east, the other was coming from Moorewood avenue. I started across the street. I was not dreaming of danger. I thought I had plenty of room and time to make it. The horses was walking at a reasonable step. As the horses got off the west going track, I thought I heard a car. I was sitting on the front of the wagon with my feet hanging over the lower front wheel, As I turned around I heard no bell. Thought I heard the ear: I looked around and I had no sooner looked than it struck,” He further testifies that the distance from tbe point where he loosened the brake of his wagon to Moorewood avenue, where he saw the approaching car, was 321 feet, and that there was a clear straight track between him and the car. He saw the car coming at Moorewood avenue, and after that he started his team. He was asked: “ Then you did not look at the car again until yoii were struck? A. Until just I thought I heard it.” And again, after saying that he looked when he started to go over, he was asked: “ But you drove across the space between the curb and the first track and across the space between the two tracks and then on to the second track, and you didn’t look for the car at all as you went on the second track ? ” - To which he replied: “I didn’t suppose that I needed to keep looking.”

The case thus presented is that of a man who looked and listened before he started his team; who in the middle of a square, not at a street crossing, drove diagonally -across the tracks of the trolley company in front of a moving car (which before starting he observed to be 321 feet away) and who, after starting his team, did not again look until the car was practically upon him.

The plaintiff seems to have observed the rule to look, listen and, if necessary, stop, before attempting to make the crossing, but where such an attempt is made, one look may or may not be sufficient. It is the look which is made just before he attempts to cross which protects one from the imputation of contributory negligence: Ehrisman v. R. R. Co., 150 Pa. 180. It is true that street railways have not the exclusive right of way of their tracks. Their rights are superior, however, to those of the traveling public. It is the duty of those using’ the highways, whether on foot or in vehicles, to yield the right of way to the cars: Jones v. R. R. Co., 9 Pa. Superior Ct. 65; Smith v. Traction Co., 187 Pa. 110.

The plaintiff had no right to assume that the duty of avoid: ing the collision rested upon those in control of the car. He evidently made a miscalculation of his chance in: attempting to cross in front of the approaching car, but such a miscalculation does not relieve from the charge of contributory negligence, even at a street crossing: Callahan v. Traction Co., 184 Pa. 425.

We are of opinion that from all the testimony in the case, and particularly from the testimony of the plaintiff himself, there was no right of recovery, because of contributory negligence. Wherefore, the judgment is reversed.

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Dissenting Opinion

Orlady, J.,

dissenting:

The most severe construction to be placed on the plaintiff’s testimony indicates that he attempted to cross over two parallel trolley tracks, located close together, on a wide avenue, at a time when a car was approaching 200 feet distant from the west and another over 300 feet away, from the east. There was a driveway on the outside of the trolley tracks thirteen and one half feet wide. The plaintiff was driving two horses, and hauling an unwieldy load of lumber piled six feet high above the bolsters of the wagon. When he entered upon the avenue from á private residence in the middle of the square, he stopped his team at right angles to the tracks when the front wheels of the wagon were in the gutter at the curb, so. that the horses’ heads were but a short distance from the near trolley track. Pie wanted to get to the opposite side of the avenue, his proper place in the line of travel, to go west to his destination. Several teams were approaching from the west on the driveway on which his team then stood, and their drivers urged him to get out of their way.

After he loosened the brakes on his wagon, he mounted to the driver’s place in front and looked up and down the avenue and saw the cars at the distances mentioned. The place was in a thickly settled part of the city, where the car tracks and driveways at each side were being frequently occupied by cars, wagons and other vehicles. He describes the collision as follows: “ I started across the street; I wasn’t dreaming of danger; I thought I had plenty of room, and time to make it. The horses were walking at a reasonable step. As the horses got off the west going track I thought I heard the car. I couldn’t drive my team and keep my eye on the car all the time, not on two of them at least.” On cross-examination he said: “ Q. But this time you did not look at the car at all as your horses went on the track, did you ? A. I looked at it when I started over.” A disinterested eyewitness to the accident testified: “ Q. If the car had been running at its ordinary or usual rate of speed could this man have gotten across safely ? A. If the car had been running at the ordinary speed, as cars did thirty minutes after that, the motorman could have stopped. Q. Could he have gotten across the track? A. Yes, sir, he could have got across. Q. In safety? A. Yes, sir. Q. Do you mean he could have gotten across if the motorman had not stopped ? A. Yes, sir, he could have gotten across if the motorman hadn’t stopped. He could have gotten across. Q. State whether the car was running at its usual speed, or slower or faster. A. Running faster than usual. In thirty minutes after that the car system was entirely different.” A passenger on the car fixed the speed of the car at about twenty miles an hour. “We were going at an unusually high speed, I think the power was thrown on.” The defendant did not move for a nonsuit, and the evidence adduced on its part materially strengthens the plaintiff’s contention that the accident was due to the unusual speed of the car, and that had it approached the place of the accident at reasonable speed, the plaintiff would have had ample time to cross both tracks in safetjr. The motorman admitted seeing the plaintiff when he started to cross the tracks, when the car was “ nearer 500 than 200 feet ” away. The view was unobstructed along a straight avenue. The car was running down a grade on four bells, a signal which means that the car will not stop for any more passengers. When near to the wagon the motorman became frightened,'put on the car brake, went back into the car, closed the doors and turned his face towards the other end of the car, and did not return to the car brake until after the wagon had been struck and it was being-pushed along the track. The car carried between thirty and forty passengers and was not stopped until it ran 150 to 200 feet past the place where the collision occurred and was so damaged that the passengers were transferred to another car and this one sent to the repair shop.

The place where the plaintiff first stopped, looked and listened was admittedly a safe and proper one. He took the. shortest and most direct route to reach his objective point, the opposite side of the street. The approaching cars were not so close upon him as to hold him guilty of contributory negligence as a matter of law, and it is a reasonable inference from bis testimony that he again looked at the west bound car before he started over that track. He could not give his undivided attention to this particular car. His team, the bulky load he was hauling and the other car were objects of equal care and duty. If there was anything reasonably to inform him of the unusual speed of the car he would be bound by it, and could not discharge his whole duty by stopping before starting. He was bound to exercise ordinary care while crossing the tracks. His situation was an unusual one. He could not occupy the driveway south of the tracks nor the east bound track by reason of the teams and car coming from that direction. The space between the tracks was not of a width to admit of his using it, and if guilty of contributory negligence at all, it was in leaving the space where his wagon stopped at the curb. Or, taking the east bound track out of the case entirely, the evidence conclusively fixes the horses’ heads at not more than ten feet away from the track on which the accident occurred, and as the plaintiff was then circumstanced, that distance from the track he was about to cross was not an improper one. Whether this was the last and best' place for him to look was a fact for the jury and not for the court. As in Ely v. Railway Co., 158 Pa. 233, and in Safe Deposit Co. v. Railway Co., 6 Pa. Superior Ct. 204, “The evidence in the present case shows that the plaintiff stopped, looked and listened before driving on the track. He was therefore not proceeding recklessly but with some degree of attention to the situation and his duty in regard to it ... . but stopping is opposed to the idea ,of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference properly can be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury. The plaintiff is not required to disprove contributory negligence, but only to make out a case clear of it.” Even in steam railroad cases while the rule to stop, look, and listen is an invaluable one, yet the question whether the traveler in a given case has stopped at the best place is necessarily a question of fact, not of law, Ellis v. Railroad Co., 138 Pa. 506, and even if it was the best place, considering its disadvantages, was it not negligence in the plaintiff not to stop a second time: Whitman v. P. R. R. Co., 156 Pa. 175; Hughes v. D. & H. Canal Co., 176 Pa. 254. The negligence of the defendant company is clearly proved. The contributory negligence of the plaintiff depends on facts and inferences to be drawn therefrom of doubtful import. A jury only should determine the question as to whether a reasonably prudent driver would attempt to cross under such conditions. His team had fully cleared the further track. The propriety of his conduct largely depended upon his surroundings at the time, the principal items being the character of the load he was hauling, the,speed of the cars and their distance from him. The case was submitted to the jury in a carefully guarded charge of which the defendant makes no complaint. The evidence was amply sufficient to sustain a verdict as in the cases of Jackson v. Traction Co., 159 Pa. 399, Wilson v. Traction Co., 10 Pa. Superior Ct. 325, and Raulston v. Traction Co., ante, p. 412. I would affirm the judgment.