13 Pa. Super. 17 | Pa. Super. Ct. | 1900
Opinion by
The plaintiff, a livery stable keeper, hired to one Samuel D. Hines a horse and buggy which, while being driven by him on the streets of the city of Altoona, were injured in a collision with a car of the defendant company. On the trial of the case in the court below, the defendant’s ninth point was as follows: “ Under the uncontradicted evidence of the plaintiff’s driver and Miss Brennecke, the .plaintiff was guilty of contributory negligence and there can be no recovery, and the verdict must be for the defendant company,” to which the court answered, “ This point is reserved, with the right to enter judgment for the defendant non obstante veredicto.”
The defendant’s eleventh point, and the court’s answer, are as follows: “ The uncontradicted evidence of the plaintiff’s witness shows that the driver did not look until the horse was upon the track: this was too late; the driver should have looked for an approaching car before he drove upon the track; there
A verdict was returned in favor of the plaintiff, and, after argument, the reserved question.- was decided in his- favor and a judgment was entered on the verdict. The undisputed testimony of the plaintiff’s driver clearly establishes the fact of his contributory negligence. He was driving with the others up Sixth avenue, an asphalt paved street, and at the moment of crossing the defendant’s railway, track on Thirteenth street a car struck the party. The point of impact as described by him was about the singletree, just back of the horse. The result of the collision was that it cut the horse loose from the buggy, threw the occupants into the street, and dragged the horse along the course of the track a distance varying from twenty-six to seventy feet.
The plaintiff’s right to recover -is to be measured by the testimony of Hines and Miss Brennecke, who occupied the buggy with him. What he did is clearly stated and is not open to any contradiction or doubtful interpretation, either direct or inferential. He was familiar with the locality and had ten years’ experience in driving horses. He admits that the crossing was not only dangerous but was known to be so by him. He testified as follows: “ Q. As you- approached Thirteenth street, what sort of. a gait did you have on your horse? A. Well, I was jogging along at-a nice slow jog. The horse was not going fast. Q. As you drove.up to Thirteenth street, what did you do in the way of exercising care ? A. I was listening and looking. I always do at any corner. Of course I didn’t stop the horse because I didn’t hear anything to-stop the horse for.” On cross-examination he describes the speed at which he approached the tracks as .“a.decent trot, a-nice slowtrot.” “ Q. Yousay you looked-and listened. Where did,you look? A. Well, I knew the car comes down that way, and I always looked up that way as soon as I got past the corner. Q. If you had stopped at the
Miss Brennecke, who was in the buggy with Himes, testified the same in substance, namely that they had occupied the crossing when the horse was moving on a trot and did not change the gait when approaching the crossing.
According to his own testimony it was the manifest duty of Hines, as he approached the street crossing to slow up. It was a place of known danger, at which he had, on former occasions, received direct knowledge of the risk; and it was as much-his duty to keep his horse under control as it was the motorman’s duty to keep the car under control: Harwood v. Union Traction Company, 189 Pa. 592.
While street railway companies have not the exclusive use of their tracks at crossings, or on other parts of the street, their rights are superior to those of the public. Their cars have the right of way, and it is the duty of the citizen, whether on foot or in vehicles, to give unobstructed passage to the cars. This results from two reasons: first, the fact that the cars cannot turn out or leave their track; and, second, for the convenience and accommodation of the public. These companies have been
From the testimony of plaintiff’s driver it is evident that he did not consider the crossing of the track a point of greater danger than the asphalt paved driveway parallel to it. He did not change the speed of his horse, and he voluntarily placed himself in the position known by him to be specially hazardous without exercising the ordinary precautions demanded by the law. He had but to use his eyes in order to have avoided the accident. There is no danger, as in the case of steam roads, in stopping a horse at the very edge of the track. When, therefore, a citizen attempts to cross such a track it is his duty, when he rea,ches it, to look in both directions for an approaching car. It .very rarely, if ever, happens that the street is so obstructed that the ear cannot be seen by the citizen as he approaches the. street. It is his duty to look toward that point and, if there is any obstruction, to listen; and his neglect to do so is negligence per se. This is an unchangeable rule and must be observed at all times, and under all circumstances. If the citizen looks just before he crosses, he avoids all danger of accident: Ehrisman v. Railway Company, 150 Pa. 180.
The plaintiff’s driver was bound to observe special precautions at the particular point where this accident happened, since he had knowledge of the speed of the cars at this particular place and the difficulty of hearing their approach.
No error in the close calculation of a chance can relieve from the charge of contributory negligence: Callahan v. Traction Co., 184 Pa. 425. The rule to stop, look and listen applicable to the crossing of steam roads applies only in part to the crossing of street railways. There is always the duty to look for an approaching car, and if the street is obstructed, to listen and, in some situations, to stop: Omslaer v. Traction Co., 168 Pa. 519. It has been decided in many cases that the plaintiff or his driver must be held to have seen that which was obvious, and it is his
The judgment is reversed and judgment is now entered in favor of the defendant.
