54 Pa. Super. 204 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff brought this action to recover for personal injuries alleged to have been sustained when the horse upon which he was riding came into collision with one of the defendant company’s cars. He recovered a verdict and judgment in the court below and the defendant appeals. The first specification of error refers to the refusal of the court below to give binding instructions in favor of the defendant, and the second to the action of the court in overruling a motion for judgment non obstante veredicto.
The plaintiff had been employed to ride the horse from Pittsburg to Washington, Pa., by Mr. R. F. Stevenson, who had purchased the animal the day before out of a lot of horses which had been sent from the state of Ohio for sale. The plaintiff had reached the vicinity of the village of Mount Lebanon and had started to ride down the hill past the Mount Lebanon cemetery, where the defendant company operates a single track electric railway upon the right side of the highway and there is a macadamized roadway, for general traffic, to the left of the railway track. There is a curve in the highway at the top of this hill and the grade from this curve down to the cemetery gate is steep. The plaintiff was riding the horse in the middle of the macadamized roadway to the left of the street car track and had passed the curve and ridden down the hill a short distance when he heard a car of the defendant company approaching him from behind. The motorman rang the bell of the street car before rounding the curve and continued to ring it as the car moved down the grade. The horse did not exhibit any signs of fright when the car first approached, but continued to proceed along the middle of the macadamized road, entirely clear of the street car track. The testimony of the plaintiff as to the manner in which the accident occurred was not very clear in his
The appellee contends that there was in this case sufficient evidence that the car was run at an excessive rate of speed and that the bell used to give warning of the approach of the car was rung a greater number of times than was necessary under the circumstances, and that it was proper, under this evidence, to permit a jury to infer that the excessive speed of the car and the unnecessary ringing of the bell had caused the horse to become excited and unmanageable, which resulted in his jumping against the car. The plaintiff testified that the car was “coming pretty good speed.” The witness Smith said the car was “running fast” and “going speedily.” His witness Beadling said the car was “running fast,” and he also said “cars usually run fast around there.” This was the sum total of the testimony produced by the plaintiff as to the speed at which the car was moving. Electric cars, upon suburban roads usually move at a good rate of speed; they run fast, and the fact that they do so is one of the reasons why they exist and are permitted to use the public highways; if they did not move speedily they would not meet the requirements of the public service, and no inference of negligence is to be drawn from the mere fact that they
The evidence as to the ringing of the bell was clearly insufficient to sustain a finding of negligence; there was no evidence that the bell used upon this car was of an unusual kind. The only evidence as to the quality of the sound was that of the witness Smith, called by the plaintiff, who said: “Q. Was this what you would call a clanging of the bell like they do sometimes? A. Sort of a musical ringing, ting-a-ling, like a man selling hot waffles.” This witness also said that the ringing of the bell was continuous, as did also the plaintiff and Beadling. The plaintiff and Beadling testified that the ringing of the bell was continuous as the car came down the grade, and that it was loud. The bell upon a street car is for the purpose of giving warning of the approach of the car to those who are upon the highway or who are about to enter it. It is the duty of the motorman to ring his bell when he sees travelers, upon the-highway ahead of him, at curves and when he approaches streets and roads which open into the highway, and if horses are frightened by the ringing and suddenly become unmanageable, the motorman is not chargeable with negligence which will render the company liable: Philadelphia Traction Co. v. Bernheimer, 125 Pa. 615; Steiner v. Traction Co., 134 Pa. 199; McKinney, v. Traction Co., 19 Pa. Superior Ct. 362. As to the allegation that the bell was rung loudly, that of itself does not show negligence; how far must the sound carry, to warn those whom it was intended to reach either on the highway or who might be about to enter it? That would depend on the state of the atmosphere at that time and the knowledge of the motorman derived from observation and experience. “No mere opinion or conjecture of those hav
When the motorman upon the car in question began to ring his bell the car was at a curve in the road, where the bell ought to have been rung, the plaintiff was a short distance ahead and there was certainly no negligence in ringing the bell to warn him of the approach of the car; the gate of Mount Lebanon cemetery, from which persons might be about to enter the highway, was 150 feet ahead of the plaintiff, and a street opened upon the right hand side of the road, at a point between the plaintiff and the cemetery gate. All the circumstances point to no conclusion of negligence in giving warning at that time and at that place, in the manner in which warning was in this case given. The horse upon which the plaintiff was riding never got upon the track in front of the car with which it came into collision. The front of the car had passed the horse, when the latter suddenly wheeled and jumped backward and the rump of the horse came into collision with the corner of the body of the car just back of the steps leading down from the front platform, knocking off the handrail used by passengers in descending the steps. There had been no indication until that moment that the horse had become or was about to become unmanageable. This case is ruled by Wright v. Monongahela St. Railway Co., 213 Pa. 318, and the specifications of error must be sustained.
The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of the defendant non obstante veredicto.