173 Pa. 488 | Pa. | 1896
Opinion by
On the 17th of August, 1892, the defendant, his son Myer, then fifteen years of age, his daughter Sophie, and her friend, Miriam Sailer, went horseback riding in Fairmount Park; in the course of their ride, they followed the park drive on east side of the Schuylkill; on the same drive, coming towards the city and meeting them, were plaintiff and his friend, William L. Collins, in a light one-horse buggy; the horse and buggy belonged to Collins, who had invited plaintiff to ride with him into the city; on their way, in front of them, going in the same
The plaintiff, averrmg negligence m the son, in backing the horse, and averrmg tMs movement was at the time directed by the father, brought suit against the father for damages. The learned judge of the court below submitted the evidence to the jury to find whether the Mjury was caused by the negligence of Myer Cohen. There was a verdict for plaintiff in sum of $4,500, and judgment bemg entered thereon, defendant appeals, alleging: 1. There was no evidence of negligence to submit to the jury. If there were, 2. The father is not, under this evidence, answerable for the negligence of the son.
A careful scrutiny of the charge on the subject of negligence, discloses no error in the statement of the law as to the relative rights and duties of the parties on the roadway; all had a right there for either purpose of travel or pleasure; each, however, was bound in the enjoyment of his right to exercise care according to the circumstances. The question is, whether there was any evidence showing want of care by defendant’s son, undei the circumstances here proven.
We speak now, solely of the relative rights and obligations of the public in the use of the drives in a public park. What
But Collins, plaintiff’s driver, turns out to drive around the Germantown wagon going the same way; just at this moment, the four horses are coming on his left hand, meeting him; he turns in towards the right to get in front of the wagon; Myer Cohen, the rider next him, attempts to fall back behind his companions to give Collins more space, — his horse throws his haunches in front of the hind wheel of the buggy, and the disaster follows. Where is the negligence in this ? Where the want of care according to the circumstances ? Cohen is endeavoring to make room for Collins’ buggy, that a collision may not occur. Assume the fact to be as plaintiff alleges, that Cohen’s horse backed across the road when checked by the reins in the hands of “his rider; it is not pretended he tried to imperil himself and horse by placing the haunches of the latter in the way of a fast moving buggy wheel. To fix the liability of the father, plaintiff strenuously contends, the son was obeying the father’s command to fall back. This is doubtless true; the son attempted to obey and checked.his horse; the animal backed partly across the road. Is defendant to be held answerable, because, in a sudden emergency, thrust upon him by the rapid movement of the horse and buggy, the dumb animal did not fall back in a straight line, as his rider attempted to direct him ?
Are these as we have stated them, the established facts ? Both plaintiff’s and Collins’ testimony is, that they had turned out to the left to pass the Germantown wagon, and when in the act of turning to the right, in front of it, their buggy was partly across the roadway; when they first turned to the left, neither of them saw the horseback riders; then, almost at the instant they saw them occurred the collision, the buggy striking the haunches of Myer Cohen’s horse. And the declarations of plaintiff immediately after the accident are wholly corroborative of his testimony at the trial; the only variance is, he now draws another inference from the same facts. C. S. Albany, Park Guard No. 8, rode with plaintiff in the ambulance the evening of the same day as the accident, the 17th of August, and made report of it to his superior the next day; he says he did not know Mr. Miller and he testifies his written report is true. This is the report:-
*494 “ Ridge Aye. & Wissa., August 18th, 1892.
“ Capt. L. M. Chasteatt.
“ Dear Sir: The following is the statement of Mr. Harvey Miller, the gentleman who had his leg broken in accident last evening.
“ ‘ I was at Riverside Mansion and met with a friend who desired me to ride home with him. We were driving behind a cab and desired to pass it, and in turning out from behind it we ran into a horse coming in the opposite direction. The horse shied and broke our wheel, throwing us out. Our horse started off. We did not see the horse coming, or the accident could have been avoided.’
“ Respectfully,
“C. S. Albany, Guard 8.”
It will be noticed this report is made the next day, when there could have been no tampering with the witness, and when there could have been no conceivable motive on his part for falsifying or suppressing the truth; it narrates Miller’s statement when every incident of the unfortunate accident was fresh in his mind, and is reduced to writing when the statement is fresh in the mind of the officer. No one with opportunity for observation of judicial proceedings, has failed to notice the lamentable infirmities of human recollection, and the tendency after the lapse of time to believe that which it is the interest of the witness to have appear as the truth. Hence, the judicial value given to testimony reduced to writing at the time the facts stated in it occurred.
Dr. Rath, a witness called by and who attended plaintiff at the hospital, and rode with him in the ambulance when the statement was made to officer Albany, testifies thus : “ Q. Did he ever tell you anything about it? A. Nothing particular, only that he stated it was merely an accident and nobody to blame for it. Q. Where did he say that to you ? A. The first time on the way to the hospital in the ambulance; I went with him.”
The plaintiff, in regard to these declarations, testifies thus : “ Q. Do you know this gentleman, Mr. Albany ? (Indicating a person in the courtroom.) A. Yes, sir. Q. Do you remember seeing this gentleman there ? A. Yes, sir. Q. Did he go up
The substance of this testimony is, that he does not recollect the statement to Albany, and he positively denies that he said the accident was his own or Collins’ fault. While he denies stating the inference testified to by Dr. Rath, that “nobody was to blame,” he testifies now to the facts which warrant precisely that inference and no other. Myer was not reckless or careless, but attempted to do that, which under the circumstances, care suggested. In attempting to do this, the peculiar position of the vehicle and the uncontrollable movement of the horse resulted in an accident for which blame attaches to neither; if to any one, it is to Collins, who says, while driving, he never looked to the left side of the road.
A careful examination of every word of plaintiff’s evidence fails to disclose any negligence on part of defendant. The jury, evidently, undertook to compensate plaintiff for a most grievous injury out of defendant’s pocket, because the latter and his party happened to be out riding at that particular place, when plaintiff and Collins desired to drive around a wagon in front of them. The cause of action against the owner of the Germantown wagon would have been just as well founded; if he had not been in front of plaintiff, the accident would not have happened; if defendant and his family had not been coming towards them it would not have happened; and this is the sum of the evidence to sustain the verdict.
To pass on the other assignment, would add nothing in vindication of our judgment, therefore as to it, we express no opinion.