30 Pa. Super. 169 | Pa. Super. Ct. | 1906
Opinion by
The plaintiff was driving northward in his carriage drawn by one horse on the Wissahickon road, a public highway in Fair-mount park, Philadelphia, and the defendant, with a friend who was driving by his permission, was riding in the opposite direction in a carriage drawn by one horse belonging to him. The time was about nine o’clock in an evening in July. At a point where, according to some of the testimony, there was a bend in the road, the two horses collided with such force, that the left shaft of each carriage penetrated deeply the breast of the horse hitched to the other carriage, and in consequence of the injuries both horses died a few weeks later. The evidence adduced by the plaintiff was to the effect, that he was driving at moderate speed, about four miles an hour, on the right-hand side of the road, so that there was ample room for two vehicles to pass, and that the collision would not have occurred if the defendant’s horse, which was being driven at an extremely rapid pace — described by one witness as “a runaway speed ” and by another as “ a dead run ” — had not been suddenly pulled over to the east side of the road, in order to pass another vehicle also being driven at a very rapid pace in the same direction as the defendant’s. On the other hand, the defendant’s testimony was, that his horse was being driven at moderate speed, not over six miles an hour, and was pulled over towaixl the middle of the road, not for the purpose of passing the vehicle ahead, but in order to go safely around the bend in the road, and that it was Arery dark at the time and place of the collision. He testified that as soon as he discovered the plaintiff’s carriage — coming up terribly, ” as he described the speed — he shouted in warning, and as he did so the collision occurred.
The first assignment of error, raises a question as to the adequacy of the charge to the jury. The foregoing outline of the testimony shows that it was not complicated, and did not require an extended review and analysis by the court, either to bring it freshly to the recollection of the jury or to enable them to appreciate its true bearing. But it is urged that it is the court’s duty in such a case to tell the jury what acts or neglects of the defendant would constitute negligence, and a failure to do so is error. Granting that it was the court’s duty
The second assignment brings into question the court’s instruction, that the juxy were to regard what the defendant’s guest did in drivixxg the horse at that time as substantially the act of the defendant himself. It is apparent that these instructions cannot be sustained upon the ground that the defendant was negligent in selecting an incompetent driver, for there is no evidence that she was such, aside froxn that relatixig to the manner of driving at this particular time. Nor was it essential to the plaintiff's recovery that negligence of the defendant in this particular be proved: Hays v. Millar, 77 Pa. 238. Further, if the defendant’s responsibility depended upon proof that he was negligent in not interfering more promptly when she suddenly pulled the horse to the left side of the road, the question should have been submitted to the jury, for there was evidence that he did attempt to take control at that time. In determining as to the propriety of the instructions we are xrot required to resort to presumptions such as were considered in Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147, and Kelton v. Fifer, 26 Pa. Superior Ct. 603, and we fully agree with the appellant’s counsel that we would xxot be justified in resorting to inferences which the juxy possibly might have drawxx, but were xxot bouxxd to draw. The question is, whether, irrespective of negligence oxx the part of the defendant in either of the particulars above referred to, and in the absence of conclusive proof that he expressly directed or tacitly assexxted to the manner in which the vehicle was being managed, it was px'oper to say to the juxy that he was respoxisible to third parties for the conduct of the driver. The facts as testified to by him were, that he and others had been on a pleasure trip, and were returning to the house of Mrs. Fairlamb ; that upoix her suggestion and his permission she rode with him because oxie of the horses of her husband’s team ivas very fractious; and that after they had started on their way, she asked the defendant’s permissioxx to drive, which was granted. This is putting the case in as favorable a light for the defendant as is possible under the evidence. There being no dispute that these were the conditions under which the parties were acting, we think the court was right ixx treating the questioxi of the defexxd ant’s responsibility for the
The judgment is affirmed.