187 Pa. 451 | Pa. | 1898
Opinion by
In the court.below the plaintiff obtained a judgment of 15,000 for an injury he attributed to the excessive and unlawful speed of a trolley car. It seems that on October 15, 1896, he “was driving a horse attached to a cart in which he was riding” northwardly on the railway track on State street. On seeing the car approaching from the direction in which he was driving he crossed the track and drove along the west side of it in the same direction as before. When the car was within seventy-five or 100 feet of him his horse appeared to be frightened by it, and commenced prancing and shying. The plaintiff testified that as the car came down to him the horse “flew around into the gutter” and then, “the horse flew back and the car struck the cart as the horse flew back.” He also testified that the speed of the car was not “less than fifteen miles an hour,” and that when the cart and car collided he was thrown
In Yingst v. Railway Co., 167 Pa. 438, the plaintiff’s horse was frightened by a trolley car coming from the direction in which she was driving, and the alleged rapid running of the car was the alleged cause of the fright. The consequences of the fright of the horse were the upsetting of the wagon and the injury to the plaintiff. The difference between the Yingst case and the case before us is that in the former the wagon was not backed against or immediately in front of the car as the cart was in the latter. The difference is not material, because in each case the fright and action of the horse, and not the negligence of the defendant, was the cause of the accident. Yingst v. Railway Co. is not qualified by Lenkner v. Traction
In the Yingst case there was evidence that the driver signaled and called to the motorman to stop the car, while in the case at bar no such request was made. Manifestly it was not anticipated by the plaintiff or the motorman that the horse would back the cart against or in front of the car. The motorman, however, testified that on discovering that the horse was frightened he shut off the power and applied the brake — that the car was under control and “just merely crawling along” when the horse suddenly turned round and backed the cart against it. His testimony was fully sustained by that of the conductor, and the testimony of the three mounted policemen who were approaching and near to the scene of the accident at the time of its occurrence. The policemen were intelligent and entirely disinterested witnesses, and their testimony was clear, impartial and convincing. It showed that the car was moving at a very low rate of speed, and that the sudden and unexpected turning and backing of the horse was the cause of the collision. There is no material discrepancy between it and the plaintiff’s testimony, aside from his wild gmess respecting the speed of the car.
The plaintiff having failed to establish the negligence charged in the statement of his claim, the court should have instructed the jury to find for the defendant. We therefore sustain the seventh assignment. In this view of the case the other assignments need not be discussed or considered.
Judgment reversed.