Ake v. City of Pittsburgh
| Decision Date | 06 January 1913 |
| Docket Number | 106 |
| Citation | 238 Pa. 371,86 A. 268 |
| Parties | Ake v. City of Pittsburgh, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 22, 1912
Appeal, No. 106, Oct. T., 1912, by defendant, from judgment of C.P. Allegheny County, Dec. T., 1908, No. 142, on verdict for plaintiff in case of Margaret Ake v. City of Pittsburgh. Affirmed.
Trespass to recover damages for personal injuries causing the death of plaintiff's husband. Before DAVIS, J.
The opinion of the Supreme Court states the facts.
At the trial a witness produced on behalf of the defendant was asked the following questions:
"Question If a person was driving a one-horse heavy spring wagon down that street, if he was driving it properly, tell us whether or not he could drive safely past Vinecliff street down to Carson street?
Objected to as a matter of opinion.
Objected to as a matter of opinion of the witness and incompetent.
Objection sustained and bill sealed for defendant." (4).
"Question: If on Sycamore street on July 20th, 1908, there was a stone pile sixteen inches high, twelve to twenty feet above the plank crossing at Vinecliff street, extending four or five feet into the roadway from the right-hand side going down Sycamore, with a sewer drop or manhole in front of it two or three feet from the boardwalk, and a hole immediately below the Vinecliff street plank crossing two or three feet from the left side of the road, the hole being at least three feet long and three feet wide at the surface and approximately eighteen inches deep, and a gutter below Vinecliff street at the left-hand side of Sycamore extending from the left-hand side of the road four feet, could a person standing up in a one-horse empty heavy spring wagon, with the horse walking down Sycamore street or going at a slow jog, in daylight drive past Vinecliff down to Carson street without upsetting the wagon?
Objected to for the same reason as above.
Objection sustained and bill sealed for defendant." (5)
Verdict and judgment for plaintiff for $5,000.00. Defendant appealed.
Errors assigned were (1) refusing a motion for judgment for defendant n.o.v.; (2) refusing binding instructions for defendant; (3, 4, 5) rulings on evidence.
The assignments are all overruled and the judgment is affirmed.
Harry Diamond, with him Charles A. O'Brien, for appellant. -- The deceased was guilty of contributory negligence: Smith v. Philadelphia, 217 Pa. 118.
L. K. Porter, with him S. G. Porter, for appellee. -- The case was for the jury: Rauch v. Smedley, 208 Pa 175; Menner v. Delaware & Hudson Canal Co., 7 Pa. Superior Ct. 135; Texas & Pacific Railway Co. v. Cox, 145 U.S. 593 (12 S.Ct. Repr. 905); Dunlap v. Railroad Co., 130 U.S. 649 (9 S.Ct. Repr. 647); Gardner v. Railroad Co., 150 U.S. 349 (14 S.Ct. Repr. 140).
Before FELL, C.J., BROWN, MESTREZAT, STEWART and MOSCHZISKER, JJ.
Margaret Ake brought an action of trespass against the City of Pittsburgh to recover damages for the death of her husband. On July 20, 1908, at about six o'clock in the evening the latter was driving a one-horse "spring-wagon," such as is commonly used in the huckstering business, in a northerly direction on Sycamore street (a public thoroughfare running from the top of Mt. Washington down to Carson street in the City of Pittsburgh); when he reached Vinecliff street his wagon was overturned and he was thrown beneath it and killed. At the point where the accident occurred Sycamore street is intersected on its western side by Vinecliff street, and at this place two planks were laid across Sycamore street to provide a foot-path for...
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