256 Pa. 347 | Pa. | 1917
Opinion by
This is an action of trespass brought by the plaintiff to recover damages for the death of his wife resulting, as he alleges, from the negligence of the defendant city in permitting a fallen tree to obstruct Neil Drive, a road about forty feet wide on the west side of the Schuylkill river, in Fairmount Park in the City of Philadelphia. The statement avers that the defendant negligently permitted the tree to be and remain across the roadway endangering the safety of persons lawfully traveling thereon, of which obstruction and danger the defendant had timely and ample notice, and negligently failed to properly and safely guard the obstruction or to give such notice or warning respecting the- obstructing tree as was necessary and adequate for the safety and protection of persons lawfully traveling on the roadway. It appears from the plaintiff’s evidence that on the night of August 18, 1911, the deceased, her sister-in-law and two gentlemen left the Belleyue-Stratford hotel, in the city, in an automobile, owned by one of the men and operated by him, to go to Narberth, a suburb northwest of the city and the home of the deceased. They crossed the Schuylkill river on the Falls bridge and turned into Neil Drive on the west side of the river. The party proceeded along the roadway at a speed of between eighteen and twenty miles an hour, and when within one hundred yards of City Line collided with a tree which had fallen across the road, its roots being on the east side and its top branches on the west side. The accident occurred between twelve and one o’clock on the morning of the 19th. The four persons were thrown from the machine and injured, the injuries sustained by the plaintiff’s wife resulting in her death. The testimony showed that the tree had been uprooted and blown across the road by a wind-storm, and was discovered about four-thirty in the afternoon of Au
The learned court in a clear and exhaustive charge submitted the negligence-of the defendant and the contributory* negligence of the deceased and of the operator of the machine to the jury, and they found for the plaintiff. The verdict was set aside, and judgment was entered for the defendant non obstante veredicto1 on the 'ground that at the time of the accident the automobile was being driven at a speed exceeding seven miles an hour in violation of Section 21 of the Act of April 14, 1868, P. L. 1083, which fixes the speed for driving and riding in Fáirmount Park.
We do not agree with the court below that, at the time of the accident, the Act of 1868 regulated the speed of
At the trial of the cause, the defendant put in evidence a rule regulating the operation of automobiles in the park Avhich was adopted by the commissioners on October 13, 1899. This rule, however, applied to and was operative only on specified roads in the park and did not include Neil Drive on which the accident resulting in Mrs. Rockett’s death occurred. The maximum speed limit on the specified roadways fixed by this rule was seven miles an hour, the same as fixed by the Act of 1868. That statute, as will be observed, prescribes certain rules and regulations to be observed in Fairmount Park, one of which fixed the speed limit, and authorized the park commissioners to adopt such other rules and regulations as they might from time to time ordain. The statute having fixed the speed limit, the commissioners were not authorized to change it, nor did they attempt to do so in the additional rules and regulations adopted by them permitting automobiles to be operated on certain roadways in the park. The learned court below, it will be observed, did not enter judgment for the defendant because of the violation of the rule adopted in 1899 by the park commissioners, but disregarded it in finally dispos
We are not convinced, nor was the learned court below, that judgment should be entered for the city, as argued by defendant’s counsel, for the reason that the defendant was not guilty of negligence under the circumstances disclosed by the evidence. We think the testimony was sufficient to carry the case to the jury. The negligence of the defendant city and the contributory negligence of the deceased and of the person operating the machine were determined from oral testimony, and the credibility of the witnesses and their testimony were for the jury.
The judgment is reversed, and the court below is directed to enter judgment on the verdict in favor of the plaintiff and against the defendant.