13 Pa. Super. 412 | Pa. Super. Ct. | 1900
Opinion by
The judgment in this case was a compulsory nonsuit on account of the contributory negligence of the plaintiff’s driver, and after argument the court refused to lift it, from which decision the plairitiff appeals. The driver testified that the accident occured on a wide avenue (on which were laid two lines of trolley tracks) at a point where it was intersected by another highway, both being much traveled by the public. He was familiar with the crossing, was driving a tractable horse, and as he approached the avenue in fair daylight he looked west
At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit, and the court said, “ This was an early hour in the morning and this car was lighted up so as to be clearly seen, and this man saw it coming lighted up, at a great rate of speed, and the motorman not attending to his business, not up at the brake, and the plaintiff undertook seeing that to go across himself. I think he had no right to do that; the evidence says that it was a foggy morning, and this car being lighted up, it was perfectly conspicuous to him, so that he was able to see all that at such a distance, three hundred feet or more. I grant a nonsuit in this case.”
If the front platform had not been occupied by a motorman it would have been reckless in the extreme for the driver to have attempted to pass in front of a runaway car. The driver did not testify that the speed of the car was unusual when he first saw it, nor when it was 200 feet distant from him, but that it was so when the car was forty or fifty feet away, at which time the wagon was in front of the car. To hold that a moving car approaching from either side of a public crossing
The trolley car and the traveler had a right to use Woodland avenue, but the right of each was subject to frequently declared rules, and each owed a correlative duty to the other; the car to give timely warning of its intention to occupy the crossing under guarded speed, and the traveler to approach it with proper caution. The situation was such as to call for unusual vigilance on the part of the motorman. Whether, under all the circumstances, the driver was negligent in attempting to cross, or in the manner in which he attempted to cross was, we think, for the jury, as in Calahan v. Traction Co., 184 Pa. 425. The plaintiff is not required to disprove contributory negligence but only to make out a case clear of it. Unless, therefore, his negligence appears affirmatively, he is entitled to go to the jury on the general presumption against it: Ely v. R. R. Co., 158 Pa. 233.
Was the driver to presume that the motorman would remain in his unserviceable attitude as he neared a much traveled public crossing? Was it not reasonable for him to believe that at a proper time and in a common sense way he would apply the. means immediately in front of him to control the car, or, if the car was beyond his control that he would at least give due and timely notice of the impending danger. The legitimate inferences to be drawn from the facts are open to debate. Where a case is taken from the jury and decided as matter of law upon the sufficiency of the evidence we must treat the plaintiff’s
The motorman had as conspicuous a view of the plaintiff’s driver as the latter had of the car. The speed of the car was much better known to the motorman than to a person facing its front, and its speed was entirely subject to his will. The rapidly descending grade, the distance traveled, and the public character of the crossing furnished sufficient reasons to induce belief that care proportioned to these conditions would be exercised by the motorman. The indifference of the motorman in not sounding the danger signal, and his disregard of duty in not being at the motor or brake could not reasonably be anticipated. The fact that the driver had almost crossed the distance the horse was dragged, and that the car ran 200 feet after the collision might induce belief in the driver’s statement that it was “ sufficiently far away to cross safely,” if the car had been running at reasonable speed: Woelfee v. Railway Co., 183 Pa. 213.
Under the evidence as the case is now presented, and owing to the reasonable and proper inferences to be drawn therefrom, we do not think that the driver should be conclusively presumed to have disregarded the rules of common prudence, and to have negligently driven into an apparent danger: Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Jones v. Ry. Co., 9 Pa. Superior Ct. 65; Allen v. Warwick Twp., 9 Pa. Superior Ct. 507; Wilson v. Traction Co., 10 Pa. Superior Ct. 325; Stanton v. Traction Co., 11 Pa. Superior Ct. 180.
The judgment is • reversed, and a venire facias de novo is awarded.