202 Pa. 427 | Pa. | 1902
Opinion by
Appellant complains that this was a perfectly clear case of contributory negligence on the part of the plaintiff which should not have been submitted to the jury. And this would be undeniable on appellant’s view of the facts, and its evidence in support of them. According to this the plaintiff if he stopped to look and listen at all did so on his own admission at a point where the coming train must have been in plain sight, and then attempted to cross in the face of manifest danger. If this were the whole case the court would have been bound to declare plaintiff negligent as a matter of law, and to direct a verdict for defendant. But the case on plaintiff’s evidence was wholly different. He testified that he had crossed the tracks but that his horse was frightened by the escape of steam and backed into danger again. In this view, however negligent he may have been in crossing in front of a moving train, he had in fact crossed safely and his negligence not having contributed to his injury, was immaterial. The accident according to him resulted from a new and wholly unconnected source of danger, the escaping steam. These two accounts of the occurrence were radically different and involved different rules of law. As there was positive evidence in support of each even if plaintiff’s own testimony was ambiguous or inconsistent, it was nevertheless.part of the whole case which necessarily was for the jury. The steam complained of was not the usual and un
Judgment affirmed.
