59 Pa. Super. 539 | Pa. Super. Ct. | 1915
Opinion by
The plaintiff’s cause of action arose out of a collision between a street car of the defendant company and a buggy in which the plaintiff was riding. The place of the accident was a street in a thickly settled part of the city of Altoona. The negligence alleged in the declaration was excessive speed and carelessness on the part of the motorman in the management of the car. The first, second, third, fourth and seventh assignments of error are based on assumptions of fact and the points were properly refused by the court for as appears from an examination of the evidence there was a contradiction as to the matters assumed to be true in the points. In the first assignment it is taken for granted that the motorman exercised “more than ordinary care and used every effort at his command to stop the car when he discovered the plaintiff on the track.” This may have been a correct conclusion when the weight of evidence was taken into consideration, but it was a subject for determination by the jury and not by the court. There was evidence that the car was going very fast on a down grade on a clear day at about nine o’clock in the morning when the plaintiff was in plain view driving in the direction in which the car was moving, that there were vehicles on each side of the street which obstructed the plaintiff’s way in getting off the track; that the collision was violent and that the car ran from eighty to 125 feet after the buggy was struck. On such a state of facts the court could not have held as a matter of law that the motorman exercised due care under the circumstances. The plaintiff was in the exercise of a lawful right in driving along the track and although the defendant company was entitled to the
The judgment is affirmed.