Woeckner v. Erie Electric Motor Co., Appeal, No. 25

Appeal, No. 25 | Pa. | Jul 15, 1896

Opinion by

Mr. Justice Fell,

The plaintiff was three years and ten months of age at the time of her injury. Accompanied by her brother, who was ten years old, she attempted to cross a street on which the cars of the-defendant were running. The street was one hundred feet wide, with a roadway sixty-four feet in width. The car tracks were twenty-five feet from the curb, and the street was at the time clear of obstructions. The plaintiff crossed the street diagonally from the curb to the tracks, in the direction in which the car was running. She was seen by the motorman when she started to cross, and when the car was one hundred feet from the point where she reached the tracks. The electric current had been turned off and the ear was running slowly on a slightly declining grade.

The testimony in the plaintiff’s behalf was that she had not changed hex course or stopped from the time she left the curb until she was struck by the car, and that no effort was made by the motorman to stop the car until she was within a few feet of the tracks. The testimony produced by the defendant tended to show that the plaintiff when within five or six feet of the tracks and eight or ten feet from the car turned toward the sidewalk ; that the motorman had brought the car nearly to a full stop, and then assuming that there was no danger of an accident released the brakes, and that as the car moved forward the plaintiff suddenly turned and ran in front of it.

Because of her age contributory negligence could not be imputed to the plaintiff. If her witnesses were correct in their statements the motorman was guilty of negligence in not attempting to stop the car until the moment of the accident. If the defendant’s witnesses were correct the only debatable ground now presented by the record is whether the plaintiff by changing her course after having turned toward the sidewalk came so suddenly and unexpectedly upon the track as to relieve the motorman from the charge of negligence and the company from liability. The case is not that of a child coming suddenly in front of a moving car at a place where its presence on the street was not to be expected. This child was seen by the motorman approaching the tracks in front of his car. He knew of the danger in time to guard against it. In a measure he did so. According to his own testimony he had full control of the movements of the car. He brought it almost to a stop, and could readily have stopped it entirely before the child reached the track. Thus far he was careful. But when he saw the child turn from the tracks he released the brakes and let the car go forward on a down grade. She was then within ten feet of the front of the car, and within five feet of the tracks. She was running thoughtlessly and playfully in front of her brother, looking back over her shoulder toward him and away from the direction in which the car was coming. Her brother, under, standing the danger of which she was unconscious, was running after her and was within a very few feet of her. If the motorman had held the car a moment, or taken the brakes partly off and allowed it to move forward slowly, the accident would have been avoided. When asked, “ Why did you not wait until she got back a safe distance from the track ? ” he replied : “ She was going on, we don’t have time to stand aronnd; when sbe started back from tbe curb I took it for granted sbe was going back.” Whether be took too much for granted and acted imprudently was for tbe jury. If tbe jury accepted the statements of tbe defendant’s witness this was tbe turning point of tbe case, and it was submitted by tbe learned judge with great care and ability and with entire fairness to both parties.

Tbe judgment is affirmed.