Gress v. Railway Co.

14 Pa. Super. 87 | Pa. Super. Ct. | 1900

Opinion by

Beavek, J.,

The wisdom of our accepted definition of negligence, “ the absence of care according to circumstances,” was perhaps never better illustrated than in the present case. We have no hesitation in saying that, if the circumstances surrounding the occurrence which gave rise to the present action had been of the ordinary character, the defendant’s prayer for binding instructions, the refusal of which constitutes the only assignment of error, should have been affirmed. The circumstances were not ordinary. As stated by the appellant in the history of the case: “At the point where the accident occurred the defendant’s double track street railway occupies a township road along the hillside. The two tracks occupy practically the entire width of the road.” There was evidence that the outside track was in a dangerous condition, unsafe for travel either by cars or other vehicles. This practically required the plaintiff to drive upon the inside track and it was this necessity which occasioned the accident.

The main question in the case was that of negligence on the part of the defendant and the only alleged ground of such negligence was the speed of its car. As to this the testimony of the plaintiff and her sister was neither clear nor specific and, if there were nothing else in the case, would have been clearly insufficient to establish negligence. The circumstances, however, were such as were necessarily taken into consideration and it was mainly in view of them that the court below left the question to the jury. The car of the defendant, upon an ascending grade, was running at such a rate as to carry the horse, buggy and occupants, according to the plaintiff’s testimony, 100 feet. This of itself was some evidence of negligence for, under the circumstances, there should have been extreme caution, and this is the only ground upon which we conceive the case could have been submitted to the jury. It is a close question but, under all the circumstances, seems to have been properly submitted to the jury for their consideration. The general charge of the court was clear, adequate and exhaustive. It is not complained of by the appellant, its only complaint being that the case was not taken from the jury and a verdict directed for the defendant. Under the circumstances, we are of opinion that the point for such instructions was properly refused. There is nothing else in the case and the judgment is affirmed.