Kaechele v. Traction Co.

15 Pa. Super. 73 | Pa. Super. Ct. | 1900

Opinion by

Oblady, J.,

The plaintiff was driving a two horse bakery wagon along a township road which was occupied by a trolley track. He alleged that the night was dark and very foggy, and although there was ample roadway outside of the single trolley track that he had used the track in preference to the roadway because the latter was rough and the tracks were more safe, and that as he was coming slowly down the road — because one of the horses had a shoe off and he had to drive carefully —and was looking in front and listening, that a car, running at a high rate of speed, without a headlight and without sounding a gong, approached from the opposite direction and was not seen until it was about fifteen feet away, “just like a black spot,” so that before he could drive from the track, the wagon and car met in a head-on collision. The lights in the body of the car were burning, but it was contended by plaintiff that owing to the fog, and because a curtain was drawn across the front of the car immediately behind the motorman, they did not make the car visible from a front view.

The verdict against the defendant necessarily implies a finding by the jury of each and every material fact relied on by the plaintiff. For the purposes of this appeal these facts must be regarded as conclusively established by the verdict: Miller v. Bank, 172 Pa. 197. A new trial was refused by the learned trial judge which gives the verdict the seal of his approval upon the evidence.

The accident occurred in the country and not at a crossing. The traveler and trolley car had a right of common user of the track, but the car had the superior right to whieh the traveler should have yielded, on sight or notice. The exact place and exact time, where and when the traveler should have turned from the track is a difficult question, and in this case depends upon conditions in regard to which a jury only can decide. It was the mutual duty of each to have been on the look out for the other, the degree of caution required by the traveler being increased by the fact that, the street car had the superior right of way.

It is the duty of the railways to exercise such watchful care as will prevent accidents, or injuries to persons who, without negligence on their part, may not at the moment be able to get out of the way of a passenger car: Ehrisman v. Harrisburg Co., 150 Pa. 180; Gilmore v. Railway Co., 153 Pa. 31; Thatcher v. Traction Co., 166 Pa. 66.

The view of the track was not clear; the existing conditions required the driver and motorman to exercise greater care than would be demanded of either in clear daylight. The evidence was not one-sided and the jury adopted the plaintiff’s testimony as the truth. While it may appear to us as being short of what we would require, if sitting as jurors, to found so large a verdict upon, yet, as was said in Kohler v. Railroad Co., 135 Pa. 346, “ Our duty is to administer justice in that broader scope in the preservation of the stability of legal rules, and uniformity in the interpretation of the law. It is ours to declare the law, but the duty- to see that juries obey it is upon the judges who preside at trials, and the power to enforce such obedience is one which should be unflinchingly exercised in the appropriate method.”

The judgment is affirmed.