47 Pa. Super. 228 | Pa. Super. Ct. | 1911
Opinion by
The plaintiff’s son was killed in a collision of a car of the
When the trolley car was 200 or more feet distant, and approaching from the west on the farther track, the horse exhibited signs of fright; when, Schmidt alleged that he signaled the motorman, and turned his horse in the roadway to cross the tracks at grade, and pass to the other side, so as to have the horse’s head turned in the direction the car was going in order to allay his fright, and to have him under better control. He succeeded in turning the unwieldy wagon in the road and crossed the first track in safety, but when leaving the farther track the street car struck the rear end of the wagon. In this collision the son of the plaintiff, who had been riding with Schmidt, jumped from the wagon to avoid injury but he was caught by the car, knocked down, run over and killed. The car passed the place of impact about thirty feet before it was stopped.
So long as common user of the streets exists in the public, it is the duty of a street railway company to exercise such watchful care as will prevent accidents or injury to persons, who without negligence on their own part, may not at the moment be able to get out of the way of a pass
The authorities relied upon by the appellant, Wright v. Street Railway Co., 213 Pa. 318; Dunkle v. Railway Co., 209 Pa. 125; Dryden v. Penna. R. R. Co., 211 Pa. 620, do not control this case. The apparent conflict in the authorities is not due to a varying rule, but to the application of an inflexible rule to the varying facts.
According to the testimony of Schmidt, he was placed in a position of great peril through the fright of his horse, and in attempting to cross the tracks, which in the exercise of his judgment at that time was the most effectual thing for him to do, he had the right to assume, or at least it was not contributory negligence on his part in assuming that the motorman, when sixty to eighty feet distant, would have his car under such control as to permit the horse and wagon to cross the tracks in safety. It may be that his judgment in this regard was wrong but not radically so, as he nearly escaped, for the rear wheel of his wagon was the part struck. Had the car been delayed a mere fraction of time, the collision would have been avoided. It has been repeatedly held that no error in a close calculation of a chance can relieve from the charge of contributory negligence: Tozer v. Ry. Co., 45 Pa. Superior Ct. 417. That rule is founded upon a voluntary choice of acts, and it is equally true that when one who is without fault is unexpectedly placed in a position of peril, he is to be dealt with in the light of his surroundings at that time and he is not necessarily negligent even though his judgment has been wrongly exercised: Sekerak v. Jutte, 153 Pa. 117; Floyd v. R. R. Co., 162 Pa. 29; McAnally v. Penna. R. R. Co., 194 Pa. 464. In this case Schmidt did not act voluntarily. The situation, was suddenly forced on him and he was obliged to act instantly by reason of the fright of his horse.
In McMahen v. White, 30 Pa. Superior Ct. 169, in
On the other branch of the case we feel that there is no room for doubt. Carl Sieb was clearly a passenger carried for hire. He had no control over the horse, or its driver. The negligence of a driver, under such circumstances, cannot be imputed to a passenger: McMahen v. White, 30 Pa. Superior Ct. 169; Thompson v. Railway Co., 215 Pa. 113; Carr v. Easton City, 142 Pa. 139; O’Toole v. Railway Co., 158 Pa. 99; Little v. Telegraph Co., 213 Pa. 229; Jones v. Railway Co., 202 Pa. 81.
It may well be that if the negligence of a passenger cooperate with that of a driver, the passenger cannot shield himself behind the driver’s negligence, whether he be in the conveyance for hire, or voluntarily there for pleasure. But if, on the other hand, there is no co-operation between the passenger and the driver, and the passenger has no control over the conveyance, and does not attempt to exercise any, the negligence of the driver cannot be imputed to the passenger. The case is a very close one, but we feel that it was properly tried in the court below.
The assignments of error are overruled and the judgment is affirmed.