73 Pa. Super. 536 | Pa. Super. Ct. | 1920
Opinion by
The plaintiff was injured while riding with a coemployee in their employer’s wagon, driven by the coemployee, on their way to attend to the employer’s business. They had proceeded westwardly along the north track on Snyder avenue, and at Passyunk avenue they proceeded to turn southwardly on said avenue across the south track on Snyder avenue. As they were about to turn out of the westbound track, both the driver and the plaintiff saw an eastbound street car approaching at a distance of 75 feet. The plaintiff did not say or do anything to prevent his fellow-employee from driving in front of the approaching car. The horses were walking. The testimony of the plaintiff is to the effect that the car was approaching fast. The learned trial judge assumed that the driver of the team was negligent in proceeding to cross the track in front of the advancing car, and in this he was clearly right. He left it to the jury to decide whether the plaintiff was guilty of contributory negligence. This we think was error. Although the driver’s
Furthermore, we do not think that there was evidence of negligence of the defendant to warrant a submission of the question to the jury. There was no evidence of excessive speed; the testimony in this regard was that the plaintiff said the car was going at the usual rate of speed, but afterwards he changed it to saying it was more than ordinary, “it was great speed.” The driver testified that the speed was the regular speed. There was no attempt to produce any competent evidence, showing what the speed was. This is not evidence of negligence : Moses v. Northwestern Pa. By. Co., 258 Pa. 537. The jury cannot b.e left to guess at or conjecture about what constitutes negligence. There was no evidence of an absence of warning, and both persons in the wagon saw the car coming. There was proof that after the accident, the trolley car stopped within a few feet: Wagner v. Lehigh Traction Co., 212 Pa. 132. After a careful reading of this testimony, we can find nothing upon which the jury could find that the defendant was guilty of negligence.
The judgment is reversed, and is now entered in favor of the defendant.