190 Pa. 222 | Pa. | 1899
Opinion by
It appears from the testimony that the plaintiff’s horse became unmanageable at Woodland avenue and Walnut street, and ran with him down Walnut to the crossing of Fourth street, where the accident occurred. During all this time, although the plaintiff kept his seat, the horse was more or less beyond his control and at the time of the accident it appears to have
We are unable to see in this testimony any evidence of negligence on the part of the motorman. There is no evidence that he heard the plaintiff call to him or that he was otherwise made aware of the approach of the runaway horse. It was his duly, undoubtedly, to look for approaching cars and other vehicles which might collide with his car; but anything moving with the speed of a runaway horse was not to be apprehended, and he might very well have assured himself that none of the ordinary dangers of street crossings threatened him without having either heard or seen the approach of the plaintiff. He had not brought his car to a full stop at the crossing, nor was there, as far as the testimony shows, any reason why he should. A motorman certainly cannot be required to stop at every crossing and look for such extraordinary perils as the one in this case, nor can he be required to stop at all unless the circumstances are such that it would be imprudent for him to do otherwise. In this case, it being Sunday and the streets consequently comparatively clear of travel, and there being nothing on Walnut street which, if moving at a reasonable rate of speed, would have collided with him, a full stop would have been entirely uncalled for.
But even assuming that he knew the situation perfectly, it cannot be said that he was bound upon being confronted by so sudden and immediate a danger to do what after mature deliberation would have seemed to a prudent man to be the wisest thing under the circumstances. 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 also a reasonable opportunity to perform it: Hestonville, etc., R. R. Co. v. Kelley, 102 Pa
The second assignment of error is sustained, and the judgment is reversed.