Argued
November 13, 1896
Appeal
by defendant, from judgment of C. P. Berks Co.-1895, No. 34
on verdict for plaintiff.
Trespass
for a collision. Before Endlich, J.
The
facts appear from the opinion of the Superior Court as
follows:
"
The plaintiff in the court below, an infant of five years of
age, by his mother and next friend, brought his action to
recover damages from the defendant for personal injuries
sustained by him at the intersection of North 10th street
upon which one of its cars was running northward, and Oley
street which was to be crossed in the city of Reading. The
child was east of the car tracks, on or near the north or far
crossing. The grade was descending. The testimony as to the
speed of the car was conflicting. It is admitted that the car
was not stopped, although the signal to do so is alleged to
have been given by the conductor to the driver. A passenger
who desired to alight from the car seems to have done so at
the south or near crossing, without its stoppage. Several
children were standing at the intersection of North 10th and
Oley streets, the one injured on the east and two others at
least on the west side of the street. A passenger, who was
riding on the front platform, says, " The cars were
running at a lively rate." The driver says that, when
the child started to run across (the street), he slacked up
much more than when he came down the hill. The case was
submitted to the jury in the court below upon the single
question as to whether or not the defendant company was
guilty of negligence by reason of the rate of speed at which
the car was moving at the intersection of the two streets
above referred to, under the circumstances. The question of
contributory negligence did not in any way appear. No
negligence could be imputed to a child of that age, and none
was alleged on the part of the mother."
Errors
assigned were, in not affirming appellant's first point
which was as follows: " First. If the jury believe from
the evidence that Mahlon Quinter, the conductor, rang the
bell before arriving at Oley street, for the driver to stop
at the far crossing of Oley street; that the driver was at
his post with his hand on the brake and the brake at the time
was partly on, owing to there being a slight down grade, and
that the driver was attending to his duty; that the child
when first seen by the driver was standing four or five feet
east of the track, either in the street or on the crossing;
that the child then started to run across the track, either
diagonally northwest, if in the street, or directly west, if
on the crossing; that the child fell between the tracks, that
the driver, immediately on seeing the child, pulled his lines
and drew his brake as hard as he could, and actually stopped
the car so that when it stopped the rear platform was in the
line of Oley street, or just north of the north crossing over
Oley street -- there was no negligence on the part of the
defendant and the verdict must be for the defendant; "
in refusing binding instructions; in overruling
appellant's motion for nonsuit.
C. H.
Schoeffer, for appellant. -- On the question of
defendant's negligence cited: Fleischman's App., 174
Pa. 510; Railway Co. v. Connell, 88 Pa. 520;
Henne v. Railway Co., 1 Pa.Super. 311; Swanson
v. Crandall, 2 Pa.Super. 85.
J. H.
Jacobs, with him H. P. Keiser, for appellee. -- The question
of negligence of defendant was properly for the jury:
Railway Co. v. Foxley, 107 Pa. 537; Railroad Co.
v. Horst, 110 Pa. 226.
Before
Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and
Smith, JJ.
OPINION
BEAVER,
J.
The
only question in the case is as to whether or not the court
should have submitted the question of the negligence of the
defendant to the jury. This question is raised in various
ways. At the close of the plaintiff's testimony, the
defendant moved for a compulsory nonsuit which motion was
disallowed. The action of the court in refusing the nonsuit
is assigned for error. It has been many times held that no
writ of error lies to the refusal to grant a nonsuit:
Pownall v. Steele, 52 Pa. 446; Mobley v.
Bruner, 59 Pa. 481. The fourth assignment of error is,
therefore, overruled.
The
sufficiency of the evidence to carry a verdict is, however
raised in the other assignments of error and they are to be
disposed of upon their merits. They all cover the same
ground, however, and are based upon the...
