210 Pa. 620 | Pa. | 1905
Opinion by
The defendants in this case, William H. Lucas and Albert Lucas, were sued as trustees, trading as John Lucas & Co. Counsel for plaintiff offered in evidence the deed of trust executed by John Lucas of March 28, 1900. Under its express provisions, the trustees were empowered to deal with the property as if they were the absolute owners thereof. It is also
The business of the defendants was the manufacture and sale of paints. On September 24, 1901, their driver was sent with the delivery wagon to take some goods to the plaintiff, Ferdinand Prinz. The driver arrived with the articles at Prinz’s place of business, 639 North 8th street, about five o’clock in the afternoon. As he came up to the front of the house, which was on the east side of the street, he was met by Harry Prinz, plaintiff’s son, a boy twelve years of age, who directed the goods to be taken around to the back entrance. The driver proceeded a little further northward, and turned his wagon when opposite an iron hitching post, which stood near the edge of the sidewalk, about thirteen inches from the edge of the curb. What followed is thus described in the language of a witness, Rachael Longacre: “I was sitting on the steps of 645 North 8th street, and a wagon was in front of Mr. Prinz’s house and Harry was standing against the post on the gutter side, and there was a boy in the wagon, and the tailboard was out, and the wagon backed and squeezed him between the post and the tailboard, and he fell.” Another witness testified that “ Harry was standing against the post, and he told the man to go around back with the goods and the man made a sharp turn and squeezed Harry with the post.” The injuries which he received resulted in his death.
The trial judge held that the evidence was sufficient to justify the jury in finding that the driver was guilty of negligence which caused the accident. It is clear that he made so short a turn that the tailboard of the wagon projected over the edge of the sidewalk and came in contact with the iron post with such force as to bend it. Obviously, it was the duty of the driver to so turn his wagon as to avoid a collision with persons or property on the pavement. This could readily have been done by an ordinarily careful man in the usual management of his team. It was certainly not necessary for him to have made so short á turn. He could have driven
The evidence was ample to justify the jury in finding that the wagon in turning actually pushed an iron hitching post four or five inches out of the perpendicular. This in itself, under the circumstances, would be strong evidence of negligence. The driver had absolute control of his horses ; there was no occasion for undue haste, and he was slowly turning his wagon around when the collision took place. If the hitching post had been the support of the roof of an awning, and the awning had been knocked down, thereby destroying property stored underneath, it would hardly have been pretended that the action of the driver was not negligent. The accident in this case did not occur at a crossing, nor was the injured boy upon the street. He was upon the sidewalk; a place which is ordinarily set apart for the use of pedestrians alone. There was no occasion to anticipate that the driver would turn in such a way as to extend any portion of the wagon over the pavement.
The trial judge refused the request of defendants for binding instructions, but left the questions of negligence and contributory negligence to the jury. He said, however, to the jury that the burden was on the plaintiffs to show that the boy’s death was occasioned by negligence on the part of the driver of the defendants. We can see no error either in the fact, or in the manner of the submission of the case to the jwy-
The assignments of error are overruled and the judgment is affirmed.