28 Pa. Super. 374 | Pa. Super. Ct. | 1905
Opinion by
The plaintiffs brought this action to recover damages for the killing of two horses, the breaking of a wagon and the sewer pipe with which it -was loaded, which resulted from a collision with'one of the cars of the defendant'company. The court below entered a compulsory nonsuit; which it subsequently refused to take off.
The accident occurred on Butler street in the city of Pitts-burg, at the point where Forty-ninth street enters that thoroughfare from the north, opposite the Allegheny Cemetery. There was no evidence that the vehicle traffic in the street was heavy or unusual. The defendant company operates two street car tracks on Butler street, the west-bound track, leading towards the city, being on the northerly side of the street. The north rail of this track is distant from the north curb of the street eleven feet, and twenty-three feet from the building line. The car with which the collision occurred was running upon this track, towards the city. The team and wagon of the plaintiff company was in charge of two of their servants, a driver and an assistant who was sitting beside' him on the wagon seat. The wagon was a heavy one and had a heavy load of sewer pipe; it was drawn by three horses, two wheelers and a leader to the point of the tongue. The distance from the head of the
The evidence of negligence on the part of those operating the car was very slight. It clearly established that the motorman made strenuous efforts to stop the car, but might have justified an inference that he became confused, or was not skillful. There was no evidence that the car was running at a rate of speed unusual on that street. Several witnesses testified that the car was running fast, but it is a fact universally known that, except in the congested parts of cities, electric cars do run fast, and that they shall do so has become a public necessity. The driver of the team of the plaintiff company was not deceived by the speed of this car; he testified that he realized when he saw the car that he would have to whip his horses up to get over, “ if it came at the speed she was coming,” and that he saw the car was coming fast. If the testimony of this witness as to the length of his team was true, the head of the lead horse was still two or three feet from the track when the driver reached the building line. Had be looked then he could have seen the track as far as Fifty-first street, and he would have seen this car and known that it was running rapidly. Having a team of such unusual length, it was his duty to so approach the track that he could stop if necessary when he reached a point wdiere he could see. Had he done this all danger would have been avoided. He evidently acted on the assumption that if he reached the crossing first he was entitled to go on, and that the duty of avoiding a collision rested entirely with the motorman; and acting on this assumption, with a full knowledge of the situation, he placed himself in a position of manifest danger. This constituted such contributory negligence as to be fatal to the right of the plaintiffs to recover: Smith v. Traction Company, 187 Pa. 110; Burke v. Traction Company, 198 Pa. 497; Mease v. United Traction Company, 208 Pa. 434.
The judgment is affirmed.