166 Pa. 66 | Pa. | 1895
Opinion by
On the 12th of February, 1891, about 3 o’clock in the afternoon, the plaintiff, while driving with a companion in a light sewing machine wagon on Wylie avenue, Pittsburg, was run into by a cable car and very seriously injured. Wylie avenue has a very steep grade for about 600 feet from the foot of Miners-ville hill to the top. Fulton is a cross street at foot of the hill, and Arthur a cross street at the summit level. Between these are three other cross streets, Vine, Tannehill and Crawford, about 150 feet apart. Wylie avenue is about thirty to forty feet wide, being seven or eight feet narrower above Fulton street than below; above Vine it curves toward Arthur. The defendant occupies, with double tracks, the middle of the avenue, and operates its railway by cable. Looking up the avenue from Fulton, the ascending cars take the right hand track and the descending cars the left hand one. Thatcher and his companion, John Crusan, the latter having the lines, drove on Wylie avenue and up across Fulton street in the direction of Crawford, the next cross street, keeping on the right hand car track, when, hearing a car behind them, and seeing wagons standing on the space between the rails and curb on the street to the right, they turned off on the left hand track for the car to pass; it passed them between Crawford and Tannehill, when they attempted
On appeal, error is alleged in negativing defendant’s fifth and sixth points. The first of these asked the court to instruct the jury that if the direct cause of the collision was owing to the fact that a wagon coming down the avenue turned to the left just as plaintiff turned to the right and thus prevented him clearing the track and avoiding the collision, it was the negligence of the driver of the wagon which was the cause of the injury, and the company is not answerable.
As the plaintiff himself testified, “We attempted to pull back and in getting back on the other track, there was a wagon turned in front of us from the left hand track, and cut our way off from getting back, and the car that was coming down was coming at such a rate of speed that we couldn’t get out of the way and it ran into us,” an affirmance of this point would have been, in substance, an instruction that plaintiff could not recover. The assignment is without merit; as the driver coming down on the, to him; right hand track, suddenly made an effort to escape from the rapidly approaching car behind and turned to his left just as plaintiff turned to his right the driving of the wagon off the track was not the negligent interposition of an independent responsible cause which produced the result. On this question Wharton on Negligence, sec. 134, illustrates the application of the rule thus: “ I am negligent on a particular subject matter as to which I am not contractually bound. Another person
As to the 2d assignment, it is argued, there was not sufficient evidence of negligence of defendant to submit to the jury.
Taking the statements of witnesses on both sides, it seems the gripman did sound the gong at about Vine sfireet but did not lessen speed, although then plaintiff’s wagon was in full view and the up car passing them; it must have been plain to the gripman then, that the vehicle was on the left hand track, because it must get out of the way of the ear going in the same direction; but there is the significant testimony as to the speed of the car, that it could not be stopped until it reached Fulton street, 300 feet beyond the point of the accident. It is not our duty now, nor was it that of the court below, to pass on the credibility of plaintiff’s witnesses as to the rate of speed, and the absence of effort to stop the car when the danger was manifest. That was for the jury. If the gripman recklessly ran on at a high rate of speed, when the probable consequence was a collision, that was negligence for which defendant is answer
A careful examination of the whole evidence satisfies us there was no error committed in leaving the question of negligence to the jury. The assignments of error are overruled and the judgment affirmed.