209 Pa. 125 | Pa. | 1904
Opinion by
The failure of duty from which springs the alleged negligence on the part of the appellee is limited to a very narrow compass. When the accident occurred the car of the appellee was running at a moderate rate of speed not exceeding four miles an hour. It was dark and the headlight of the car was properly lighted, the motor was in proper order and the car under control. The motorman was in his place and attending to his duties. There was therefore no substantial ground for negligence arising from the condition of the car or its management. It was, however, alleged that appellee was guilty of negligence because its motorman did not stop the car in time to enable him to avoid the collision.
The argument that from this evidence negligence on the part of appellee might be deduced is inconsequential and this in-consequence becomes most distinctly so in connection with the testimony on its behalf. The motorman testified that when he first saw the horse and sleigh they were between fifty and sixty feet from him. They were outside of the track. The horse backed the sleigh upon the track and the car after striking it ran some ten or fifteen feet before it stopped. That he had the car under control with the power off. That he saw the horse back the sleigh upon the track and at once reversed the motor. That he heard the appellant halloo when the horse had backed upon the track but he saw no motion of the whip by the appellant. That the sleigh was on the outside of the track some fifty feet away. The horse was not backing but was moving along. That he only discovered the horse backing when the sleigh was about ten or fifteen feet from the car, that lie made every effort to stop it, and that the car was running about four miles an hour.
This evidence does not warrant the conclusion that the motorman heard the appellant, or it being dark, that he saw or could have seen the motion of the whip made by appellant when he was outside of the track. The case therefore is one of that class of cases where the accident is caused by a horse suddenly becoming frightened and resulting in an unavoidable collision, where the evidence does not establish negligence: Yingst v. Lebanon, etc., St. Ry. Co., 167 Pa. 438; Smith v. Holmesburg, etc., Electric Ry. Co., 187 Pa. 451.
The assignments of error are not sustained and the judgment is affirmed.