209 Pa. 72 | Pa. | 1904
Opinion by
If from the facts in this case the logical deduction was clear and without doubt that the appellee was guilty of negligence which contributed to the accident causing the injury to him, the question of his negligence became one of law and the appellant was entitled to binding instructions in its favor. The evidence shows that appellee came down Rising Sun lane to Germantown avenue upon which appellant had two tracks, one for its cars moving southward and one for those moving northward. Upon its western track the cars run in a southerly direction and upon its eastern one they run in a northerly one. Rising Sun lane crosses Germantown avenue nearly at right angles and above it at a distance of about 100 feet is Ontario street. The tracks in question occupy the center of the avenue and upon either side there is a space or roadway for vehicles and travel. The accident in this case occurred upon Germantown avenue just north of Rising Sun lane and between it and Ontario street and was caused by a sudden attempt of appellee to cross with his wagon in front of an approaching car
Appellee came down Rising Sun lane and when he reached the west side of Germantown avenue one of appellant’s cars was coming from the north and one from the south. Instead of taking the roadway on the west side of the tracks he crossed over to the eastern one and just in front of the car moving northward. Hearing the sounding of the gong of that car and seeing a car approaching him from the north distant from thirty-five to fifty feet, he suddenly attempted to cross the western track and as soon as he began his attempt the motorman reversed his power and used every effort to stop his car, but the distance intervening between the car and the wagon was so short, that he was not successful and the accident became inevitable. Appellee’s account of it is that he crossed to the eastern track, heard the gong of the car coming north, that he saw the car coming south, and that he took it for granted that he had plenty of time to cross the track. Pie stated that the car was five or six houses distant. The reason he gave for making this attempt thus to cross under the circumstances was that there was a wagon on the roadway east of the track and one coming down on the north track. He was unable to say what speed the car moving south approached him. Upon cross examination he said he undertook to turn out on the other side to get out of the way of the car coming up and the one coming down and that he turned in front of the one coming down. Appellee’s companion who was with him in the carriage at the time of the accident testified that the gong of the car going north was being sounded for them to get off the track. That appellee immediately turned his horses across to the left-hand side of the street crossing the down track and after his horses had cleared there was a crash and he was thrown out. Appellant called as witnesses a number of passengers who were upon the car moving south and who saw the accident. One testified that he saw appellee deliberately turn in front of the car and when he did so he was about fifty feet from it. Another that she saw the carriage in front of the car and that the next instant it started across in front of it. Another that he saw the wagon cross over on the north track and that the car going south was about forty feet away when appellee turned
In Moser v. Union Traction Company, 205 Pa. 481, the same justice says : “ But he probably failed to take due note of the fact that it (the car) was steadily nearing at a rapid gait the point at which he wanted to cross the track. ... It was his plain duty to look for it, and observe its position before driving upon the track in front of it. For his disregard of this duty the trial court held that he could not recover in this action.”
While the evidence establishes that the appellee was guilty of contributory negligence it also shows no negligence on the part of the appellant. It failed in no respect in regard to its duty. It did nothing that it ought not to have done and did not fail to do what it should have done. Its car was upon the track where it had a right to be and was not moving at an unusual rate of speed. Its conductor was in his place and its motorman acted promptly and reversing his power, quickly stopped his 6ar. In Phillips v. People’s Passenger Railway Company, 190 Pa. 222, Mr. Justice Fell says: “Where the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there must be not only a consciousness of the facts which raise the duty on the part of the person who is charged with its performance but a reasonable opportunity to perform it.”
The assignment of error is, sustained and the judgment is reversed.