Wаlter Fixter, plaintiff’s intestate, was struck and killed by a taxicab belonging to the defendant company at Broad and Spring Garden streets in the city of Philadelphia on April 13, 1923. Broad street runs practically north and sonth, and Spring Garden east and west, a little southeast and northwest. On Friday, April 13, 1923, at about 20 minutes after 9 o’clock in the evening, the deceased was crossing Broad street, from the east to the west side, at its intersection with Spring Garden. Just before he reached the west side of Broad street, he was struck by the cab, which was traveling south on Brоad *328 Street. Suit was brought against the cab company to recover damages for his death. The jury renderеd a verdict for the plaintiff, and the defendant has brought the ease here on writ of error.
The defendant contends that the evidence shows, first, that it was not negligent; and, second, that the deceased was guilty of cоntributory negligence, and therefore the plaintiff should have been nonsuited. It is admitted that at the time of the accident it had bgen. raining hard for some time. Both Brpad street and Spring Garden street are unusually wide at their intеrsection. The driver .testified .that, .when crossing. Spring Garden street, he. was .driving about 18 miles an hour. There was testimony, hоwever, thht the “ear was going not less than 35 to 40 when it hit that man.” There was- testimony that the deceased was crоssing Broad street against the traffic sign. There was also testimony that, when he started to cross Broad street)" the lights were set for him to -go — that is, against traffic on Broad street, .and for the- movement of traffic on Spring •Garden.street; that after he had committed himself to crossing Broad street, but before he, was able to reaсh the west side, and at .about the time . the taxicab going south on Broad street reached Spring Garden streеt, the lights were turned against traffic on Spring Garden street, and for the movement •of traffic on Broad street.
As tо the relative rights of vehicles and pedestrians, vehicles have the right of way on the portion of the street set aside for them, but at crossings, all drivers, particularly of motor vehicles, must be highly vigilant, and maintain- such cоntrol of their vehicles that they can stop their cars on the -shortest possible notice. McClung v. Pennsylvania Taxi Cab Company,
The testimony on the issues in the case is inconsistent and contradictory. Undеr such circumstances, it was the duty of the court to submit the ease to the jury, whose province it was to reсoncile conflicting statements and determine the facts upon which its verdict was based. Kennelly v. Waroрoyak,
Was the amount of the verdict excessive? All the facts disclosed by the evidence relating to thе question of damages was reviewed by the court, and properly submitted to the jury without exception by counsel, and we cannot say that the damages awarded were excessive.
The plaintiff was widow of the dеceased and administratrix of his estate. She started her suit in common pleas court No. I of Philadelphia, as administratrix, within three months after the accident, and not as widow, as the law in Pennsylvania required. In her statemеnt of claim, however, she did declare that she was widow of the deceased and administratrix of his estatе and was entitled to recover damages as “his widow.” The cause was removed to the United States District Court for the Eastern District of Pennsylvania. It was not discovered by any one—-at least, attention was not callеd to it—that she had wrongly entitled her cause of action until May, 1924, when a motion for a new trial was argued. It was then raised for the first time by counsel for defendant. More than one year had elapsed since the deceased died, and the statute of limitations prevented a new action from being instituted.
The trial judge permitted plaintiff to. amend by striking out, in the first and last-paragraphs in the statement of claim, as surplusage, the words “administratrix of the estate of Walter Fixter, deceased.” Defendant contends that this in substance constituted a new action, and was error.' It abundantly appeared in the statement of claim that the plaintiff was widow, аs well as administratrix, and we think that the amendment was one of form, and not of substance, and in such ease an amendment may be made under sections 948 and 954 of the Revised Statutes of the United States (Comp. St. §§ 1580, 1591). Federal courts are very liberal in allowing amendments to prevent a miscarriage of justice. McDonald v. State of Nebraska,
The facts in the ease of Van Doren v. Pennsylvania Railroad Company,
' We do not find that the learned trial judge committed error, and the judgment is affirmed.