202 Pa. 365 | Pa. | 1902
Opinion by
In the trial of the cause in the court below a recovery was resisted on the ground (1) that the evidence showed the deceased guilty of contributory negligence, and (2) that it failed to disclose negligence on the part of the defendant company. The jury found in favor of the plaintiffs on both questions and the defendant has appealed, alleging as error the court’s refusal to withdraw the case from the jury.
The accident which resulted in the death of Edwin Fenner, the son of the plaintiffs, occurred on the track of the defendant company on Main street which runs north and south in the borough of Ashley in Luzerne county. The street at this point is closely built up and both sides are densely populated. On the evening of October 10, 1898, the deceased was in charge of a two-horse spring wagon, delivering goods to the customers of his father, who is a wholesale produce merchant. He had in the wagon a barrel of pears weighing about 250 pounds, a keg of quinces and several baskets of grapes for delivery to Daniel Doyle whose store is on the west side of Main street and ninety feet below Hartford street. He drove to Mr. Doyle’s place of business and backed the wagon at right angles against the curbstone for the purpose of unloading the produce. In about two minutes thereafter, one of the defendant’s cars going north struck the horses and the front part of the wagon, separating the horses from the wagon and carrying it about sixty feet. The car was stopped at the distance of 160 feet from the point of collision, and the dead body of the young man was taken from beneath it. The accident happened about twenty minutes after six o’clock in the evening. It was not dark but “ was getting dusk.”
At the place of the collision, Main street is about thirty-one
In support of their contention that the deceased was guilty of negligence contributing to his death, the learned counsel for the appellant claim that he voluntarily placed himself and his team in a place of known danger, and that after having done so he could still have prevented the accident if he had looked for an approaching car which could have been seen 700 feet distant, which would have enabled him to have removed his team from the track. It is further contended by the appellant that the deceased could have placed his wagon and horses longitudinally with the curb and thereby not encroached upon the defendant’s track while the produce was being unloaded.
The facts stated above are undisputed. It, therefore, clearly appears that owing to the obstructions in the street and on the pavement in front of Mr. Doyle’s store, the deceased was compelled to back his wagon to the curb to unload his produce unless he deposited it on the pavement in front of another’s property and some distance from the store. The distance between the pile of lath and the flagstone was not more than fifteen feet and from the heads of his horses to the rear of the wagon was twenty-one feet. The wagon was so constructed that the front wheels would not turn under the bed and permit the horses to stand at right angles with it. When the wagon stood against the curb which is twelve feet eight inches from the track, the horses were necessarily standing on the track.
The other ground on which the defendant company seeks to relieve itself from liability in this action is that the evidence fails to show that the accident was the result of the negligence of its employees in control of the car. The argument to support this position was doubtless addressed to the jury, and very properly so. The plaintiffs allege that the defendant’s employees were negligent in running the car at an excessive rate of speed and in not giving notice of its approach to the team which was on the track and in plain view of the motorman.
It is contended by the appellant that the collision not having occurred at a crossing, its duty did not require it to signal the approach of the car to the team; that it is not required “ to anticipate danger at every private property on its route.” We need not stop to determine the correctness of these suggestions. The undisputed fact here is that the motorman had a clear, unobstructed view of the team for a distance of more than two hundred yards, and therefore his duty required him not only to run his ear at a reasonably safe speed but also to give warning of its approach to the wagon, regardless of the fact that it was on the track, not at a crossing. It was a place of danger, —where a collision might occur — and hence it was his duty to take the necessary precautions to avoid an accident. “The movement of cars by cable or electricity along crowded streets,” says the late Chief Justice Green, in Carson v. Federal Street, etc., Railway Co., 147 Pa. 224, “ is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways, and those using the streets in the ordinary manner. It is the duty of railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of their approach to crossings and places of danger. Their failure to exercise the care which the rate of speed and condition of the street demand, is negligence.” Winter v. Federal Street, etc., Pass. Railway Co., 158 Pa. 26, relied upon by the defendant is clearly distinguishable from the case in hand. In that case, the accident occurred at eight o’clock in the evening when it was dark with no lights near the horses to enable the motorman to see them. There was no obstructions which prevented the wagon from being placed longitudinally along the curb, and as observed by the court, “ it was obviously unnecessary for the appellee to drive upon and occupy the railway tracks, as he did, for the purpose of unloading the safe.” These facts are referred to in the opinion as showing the plaintiff’s negligence. Here, however, it was not dark but “ was getting dusk,” and the team driven by the deceased could be and presumably was seen by the motorman for a sufficient
The assignments of error are overruled and the judgment is affirmed.