Walsh v. Altoona & Logan Valley Electric Railway Co., 232 Pa. 479

Walsh v. Altoona & Logan Valley Electric Railway Co.

232 Pa. 479 | Pa. | 1911

Opinion by

Me. Justice Mestrezat,

We have examined this case with care, and notwithstanding the thirty-two assignments of error filed by the appellant we discover no reversible error in the record. Eighteen of the assignments allege error in the answers to appellant’s request for instructions to the jury. These points were properly refused because they assumed as facts matters in dispute, or asked for binding instructions. Three assignments complained, without cause, of the learned judge’s charge which was more favorable to the appellant company than the facts warranted. Nine of the assignments allege error in the court’s answers to appellee’s requests for instructions to the jury, one of them complaining that the court refused appellee’s ninth point. Of the other two assignments, one alleges error in not withdrawing a juror, and the other in not entering judgment for the defendant non obstante veredicto.

The case was properly submitted to the jury in a charge of which the appellee had more reason to complain than the appellant. There was ample evidence to warrant the jury in finding that the motorman was negligent. The abrupt turn of the track as it entered Tenth street from Lincoln street required the motorman to keep a careful *484watch along the track in front of him, and to announce with the gong his approach to the crossing where the accident occurred. From the crossing the view of an approaching car on Lincoln street is obstructed by buildings, and the only notice of the approach of the car is the noise it creates or the signal given by the motorman. The driver of the wagon and his father both testified that they listened but heard no gong. Several other witnesses testified that they were in a position to hear and that the gong was not sounded. In addition to this failure of duty on the part of the motorman, there was testimony which justified the jury in finding that at the time the car was turning on the curve into Tenth street, the motorman was looking directly across that street instead of along the track which was to his left, that passengers on the car saw the team before he did, and that he was not aware that the team was crossing until the conductor rang the bell at the suggestion of a passenger on the rear platform when it was too late to avoid the collision. The verdict shows that the jury believed this testimony, and therefore the motorman was properly convicted of negligence for which the defendant company was responsible.

The appellee was the guest of her father and the team was driven by her brother who was not her servant or under her control. Under these facts negligence of the driver of the wagon, if any, cannot be imputed to the appellee: Jones v. Lehigh & New England R. R. Co., 202 Pa. 81; Little v. Telegraph Co., 213 Pa. 229.

Whether the appellee exercised the care of a prudent person in permitting the driver to attempt the crossing under the circumstances was for the jury and not for the court. The test of the appellee’s contributory negligence is, under our cases, whether she joined in testing a patent danger or violated a fixed rule of law. Her brother, as was clearly established by the testimony, had knowledge of horses from his earliest years, and was a careful and' competent driver. There is no testimony to show that the horses were unruly or were not gentle. The crossing *485was not in itself dangerous and was only made so by the approach of an unexpected or unheralded car running not • oftener than every twenty minutes. This fact did not prohibit the public from using it or render a party guilty per se of negligence in attempting to use it. It is equally true that the public used the right-hand side of the street when traveling in that direction, and the driver testifies that, on the occasion of the accident, he had to use the right side of the street because there was a wagon on the other side approaching from the opposite direction, and he turned to cross the street car track as soon as the wagon had passed. With proper care on the part of the driver and motorman, a team could pass the crossing with perfect safety. There was testimony to warrant the finding that the driver and his father looked and listened before starting across. The testimony did not show that the car was visible to or heard by the appellee or any other occupant of the wagon when the crossing was attempted. There was no obvious or imminent danger in a passenger permitting a capable driver to make the crossing, and hence whether the circumstances under which the accident occurred required the appellee to act differently from what she did and whether she was negligent in permitting the driver of the vehicle to attempt the crossing were questions for the jury. In Carr v. Easton City, 142 Pa. 139, the guest of the driver and owner of a sleigh brought an action to recover damages for injuries sustained by being thrown from the vehicle. The following remark in the opinion, with appropriate changes as to the driver and vehicle, is applicable here: “She was a woman, not shown to have any special knowledge of driving or horses or sleighs, who had trusted herself to the guidance of her brother-in-law and his friend; and we cannot say, as matter of law, that the danger was so apparent or so serious that she was called upon to exercise her own judgment in opposition to theirs. All these matters are for the jury to decide, upon their view of reasonable care and prudent conduct, under the circumstances shown by the evidence.”

*486Whether the appellee was guilty of negligence in leaping from the wagon under the circumstances was likewise for the jury. She certainly had reason to believe that a collision between the car and wagon was imminent and that it might result in serious consequences to her. While the appellant company contends, and its testimony supports the contention, that the car did not strike the wagon, there was evidence on the part of the appellee which, if believed, warranted the conclusion that there was a collision. If the appellee, without her fault, was placed in danger of a collision between the wagon and the car by the negligence of the defendant company and she had a well-grounded fear that the collision would result in serious injury to her, she, if acting in good faith and as a person of ordinary prudence, was not guilty of negligence in leaping from the wagon to escape the threatened danger, although it was not the safest or wisest course to pursue. Whether the facts existed which warranted her in attempting to thus avert the threatened danger was for the jury under the evidence submitted.

We are not convinced that the errors complained of in the second and tenth assignments did the defendant any harm. The amount of the verdict shows that the appellant was not injured by the illustration given by the learned judge in his charge as to the proper manner of estimating the damages. We do not approve of the language used by him in submitting the case on the question of damages and complained of in the second assignment, but it is apparent that it worked no injury to the appellant in this case, and, therefore, the assignment is not sustained.

The judgment is affirmed.