227 Pa. 482 | Pa. | 1910
Opinion by'
March 21, 1910:
The plaintiff brought this action to recover damages for the death of her husband, which resulted from an accident alleged to have been caused by the negligence of an employee of the defendant company. The court below entered judgment of compulsory nonsuit, and refused to take it off. The question is, was there at the trial any evidence of negligence which ought to have been left to the jury. The facts of the case are simple. The defendant company has a double track electric railway laid upon the Philadelphia and West Chester turn-, pike. On February 13, 1908, about four o’clock in the afternoon of a foggy day, James S. Mackey, husband of the plaintiff, accompanied by L. R. Dennis, drove a four-horse team attached to a heavy oil wagon, out of a private driveway on the south side of the highway, up nearly to the line of the tracks. At that point the tracks run east and west, and are located on the southerly side of the road. The team was stopped when the noses of the leading horses were not more than eight feet from the first rail of the first track. One witness puts the distance at about three feet. While the team was standing, the men looked both ways and compared notes and agreed that no car was in sight, and that it would be safe
The principal matter in which negligence is charged against the defendant company in plaintiff's statement of claim, is in running the car at an undue rate of speed, and without having it under proper control, so that it could be brought to a stop within a reasonable distance, when the motorman saw, or in the exercise of due care should have seen, that a team was crossing the track at a considerable distance ahead of him. It was for the jury to say whether and how far the evidence as to this point was to be believed, and whether or not an inference of negligence in this respect upon the part of the
As to the question of contributory negligence upon the part of the driver of the team, in such a case as this, that can only properly be so pronounced by the judge as a matter of law, when the evidence is clear and undisputed, that in attempting to cross the tracks, he has driven in front of an approaching car, when it was so near to him that the motorman could not reasonably be expected to stop his car in time to prevent the collision. But when there is testimony as in this case, that with a long and unobstructed view of the tracks, no car was to be seen when the driver reached the edge of the line, and that the space between the point where a possible approaching car would appear and the line of the crossing was such as would seem ample under ordinary circumstances to permit of safe passage: when, notwithstanding such an alleged situation, during an attempted crossing of the tracks, a collision occurs, it seems to us that the questions of negligence and contributory negligence should properly be left to the determination of the jury.
We are of opinion that under the evidence, this case as presented was not one for the court to determine as matter of
The judgment is reversed with a procedendo.