4 Pa. Super. 86 | Pa. Super. Ct. | 1897
Opinion by
Negligence is always a question for the jury whenever there is a conflict of testimony, or for any cause there is a reasonable doubt as to the facts or as to the inferences to be drawn from them. If the motorman of the defendant company saw, or, in the exercise of due care, ought to have seen the plaintiff on the track and making ineffectual efforts to get off, and by slowing up his car could have avoided the collision, and failed to stop or slow up his car; or if, having regard to the narrowness of the traveled portion of the highway, the amount of travel
As was said in Gilmore v. Railway Co., 158 Pa. 31, “Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons, who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing car. The degree of care must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.” This statement of the law lias been recognized and applied in many cases, amongst which may be mentioned Gibbons v. Railway Co., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Lott v. Railroad, 159 Pa. 471; Thatcher v. Traction Co., 166 Pa. 66, and our own case of Smith v. Phila. Traction Co., 3 Pa. Superior Ct. 129. It is applicable here; and, as was said in Thatcher v. Traction Co., supra: “ It is not our duty now, nor was it that of the court below, to pass on the credibility of plaintiff’s witnesses as to the rate of speed, and the absence of effort to stop the car when the danger was manifest. That was for the jury.” It would have been error to instruct the jury that, there was no evidence of negligence on the part of the defendant.
But it may be said that the plaintiff cannot allege that he was accidentally upon the track, because his being there was attributable to his neglect of duty as a driver in stooping over to set right the vinegar bottle in the bottom of his wagon and remaining in that position long enough to permit his horse to get upon the track. The fact is undisputed, but whether it was a negligent act or not depended upon the circumstances, some of which are in dispute. It was not negligence per se like the failure to stop, look and listen before crossing a railroad track. The case, therefore, is a proper one for the application of the well-settled principle that when the measure of duty is ordinary and reasonable care, and when the degree of care varies according to the circumstances, the question of negligence is always for the jury: D., L. & W. R. R. Co. v. Jones, 128 Pa. 308; Gates v. Penna. R. R. Co., 154 Pa. 566. Without discussing the defendant’s second, third, fourth, and seventh
The affirmance of the plaintiff’s first point as qualified in the answer was an instruction that if the car which struck the plaintiff’s wagon was being run at greater speed than allowed by the ordinance of the borough, and if the restriction imposed by the ordinance upon the rate of speed was a reasonable one, it was prima facie evidence of negligence on the part of the defendant, and the plaintiff was entitled to recover. This was manifestly erroneous and inconsistent with other portions of the charge and the answers to other points, because it took from the consideration of the jury the question of the plaintiff’s contributory negligence, if they found the defendant negligent in the particular specified. Was it harmless error? We are not sure that it was. The jury may have got the impression that while, generally, the plaintiff’s contributory negligence would prevent recovery, yet if the ordinance was reasonable and was violated by the defendant, then in that particular instance the plaintiff would be entitled to recover without regard to his own negligence. We are sure that the learned judge did not intend to convey that impression, but we are not sure that the jury did not receive and act upon it. Obscure and equivocal expressions, which, severed from the context, would be erroneous, have often been held to be harmless when construed in the light of other instructions and the charge taken as a whole: Knights of Pythias v. Leadbeter, 2 Pa. Superior Ct. 461. An obscure answer to a point may be aided in this manner, but not one that is palpably wrong: Murray v. Com. 79 Pa. 311; Rice v. Olin, 79 Pa. 391. In Steinbrunner v. Railway Co., 146 Pa. 504, Chief Justice PAXSON said of a portion of the charge assigned for error: “ It may be the learned judge used this language inadvertently.
There is another view of this question, which, as the ease must go back for a retrial, is worthy of consideration. Edward Foley, the motorman, testifies that the plaintiff was but sixteen or twenty feet ahead of the car when he turned in on the track. Assuming for a moment that the plaintiff got upon the track by what may be regarded as a pure accident; that the ordinance restricting the speed of cars was a reasonable regulation; and that, at the time of the collision, the defendants car was moving at a greater speed, does it follow as a necessary legal conclusion that the speed of the car was the cause of the injury ? We think not. As Gibson, C. J., has said, “the defendant was answerable for the consequences of negligence, not for its abstract existence: ” Hart v. Allen, 2 W. 114. Its negligence in moving its car at too great speed was immaterial if it did not cause or contribute to the loss. Whether it did so or not was a question of fact. We do not question the admission of the ordinance in evidence. It is not denied that the jury had a right to take into consideration the fact that the car was moving at greater speed than the ordinance permitted: Pennsylvania Co. v. James, 81* Pa. 194; Lederman v. R. R. Co., 165 Pa. 118. But a municipal ordinance creates no new civil liability enforceable at common law in favor of one injured by another acting in disobedience of it: P. & R. R. Co. v. Ervin, 89 Pa. 71; P. & R. R. Co. v. Boyer, 97 Pa. 91. Hence it cannot be laid
The judgment is reversed and a venire facias de novo is awarded.