273 Pa. 152 | Pa. | 1922
Opinion by
Defendant operates a trolley line, the cars of which run southwardly on Front Street in the City of Phila
Appellant admits that if plaintiff’s testimony is true, she did all she was legally required to do in the matter of looking and listening before committing herself to the cartway of the street and before crossing the track; but urges that, if this be so, it was physically impossible for the accident to have happened in the way she states; and therefore asks us to enter judgment for defendant non obstante veredicto, becáhse no judgment should be sustained, the basis of which is a fact or a series of facts which cannot possibly be true: Lessig v. Reading Transit & Light Company, 270 Pa. 299. If the testimony in this case justified us in so doing, we would unhesitatingly comply with this request, for the necessity of such a principle has become increasingly evident. The constitutional provision relating to trial by jury admonishes us, however, that in deciding matters like these we must accept as true all the evidence and inferences therefrom favorable to plaintiff, and reject all those, depending solely on oral testimony, which are unfavorable to her: Mountain v. American Window Glass Co., 263 Pa. 181; Geiger v. Garrett, 270 Pa. 192.
Considered from the standpoint stated, the record discloses the following facts: At the time of the accident, one of defendant’s trolley cars, in which plaintiff was a passenger, stopped on Front Street near the corner of Catharine, the exact point not being stated. Plaintiff alighted and walked in her natural gait along Catharine Street to the crossing above referred to, stopping and looking before she entered the cartway, again while she
In addition to the absence of evidence regarding the actual or probable speed of the trolley car, it was not shown how fast plaintiff walked at that time or when going at her natural gait. Defendant’s counsel in the questions he asked, assumed it to be about two miles an hour, and for the comparison about to be made we also will take this for granted. We will assume likewise, as
What we said in Armstrong v. Consolidated Traction Company, 216 Pa. 595, 597, is therefore applicable: “The weakness of his [plaintiff’s] case is that between the time he looked at the Seventh Street car and the time he was struck by it, it must have moved from a full stop sixty-five feet on a curve [at the rate of 39 miles an hour], and during this time he had only to glance in another direction and walk about twelve feet. It is highly improbable that his recollection was accurate as to all the facts detailed and that the accident happened in the way described by him. It is not, however, impossible that it happened in this way, and the court would not have been justified in withdrawing the case from the jury on the ground that he stepped in front of a moving car which he either saw or should have seen.”
We may add, also, that the heedlessness of the motorman is wholly inexplicable, even on his own showing. Under the circumstances shown by the evidence in this case, the motorman was bound to be highly vigilant and maintain such control that, on the shortest possible
It is also contended that the court below erred in refusing to allow an expert witness to testify how many feet would be covered in a given time by a woman walking at the rate of two miles an hour. The court below might well have admitted this evidence, but cannot be convicted of error in not doing so. Any one understanding arithmetic, could as well have answered the question as the witness, and hence it was not a case for expert testimony.
The only other assignment alleges error in not permitting defendant to show by experienced motormen what length of time it would take a car of the type of the one which struck plaintiff, to round a curve and go 45 feet or 46 feet 6 inches. This assignment might well be dismissed because it contains two exceptions, in violation of the rules of court; but it falls also for the reasons stated by the trial judge, that it does not refer to the movement of the particular car which caused this accident, nor take into account the many elements, human and otherwise, which are necessary to be considered in order to make the answer of any value. It is, of course, possible that cars of this type may start at the same rate of speed, but it is equally certain that the speed subsequently acquired depends on the amount of current which the trolley wire carried at the time, and the manner and extent to which it was applied in driving the car, as well as the control which the motorman then exercised over it. He might have supplied the missing links, or indeed have fixed the speed with reasonable exactness, but he was asked nothing in regard to the matter, though
The judgment of the court below is affirmed.