Blaney v. Electric Traction Co.

• Decision Date: 07 February 1898
• Docket Number: 293
• Citation: 39 A. 294,184 Pa. 524
• Parties: Catherine Blaney v. Electric Traction Company, Appellant
• Court: Pennsylvania Supreme Court

39 A. 294

184 Pa. 524

Catherine Blaney v. Electric Traction Company, Appellant

No. 293

Supreme Court of Pennsylvania

February 7, 1898

Argued January 14, 1898

Appeal, No. 293, Jan. T., 1897, by defendant, from judgement of C.P. No. 2, Phila. Co., Dec. T., 1895, No. 114, on verdict for plaintiff. Reversed.

Trespass to recover damages for death of plaintiff's husband. Before PENNYPACKER, J.

The facts appear by the opinion of the Supreme Court.

Defendant's point was as follows:

Under all the evidence in this case the verdict must be for the defendant. Answer: Refused.

Verdict and judgment for plaintiff for $4,000. Defendant appealed.

Error assigned was above instruction, quoting it.

The judgment is reversed, and judgment is entered for defendant.

Thomas Leaming, with him Thaddeus L. Vanderslice, for appellant. -- The deceased was guilty of contributory negligence Nugent v. Phila. Traction Co., 181 Pa. 160; Buzby v. Phila. Traction Co. 126 Pa. 559; Rauscher v. Phila. Traction Co., 176 Pa. 349; Flanagan v. R.R., 181 Pa. 237; Baker v. P.R.R., 182 Pa. 336.

A. S Ashbridge, Jr., for appellee. -- Where the degree of care shifts with the circumstances, and the measure of duty is ordinary and reasonable care, the question of negligence, whether of the plaintiff or defendant, is always for the jury: Railroad v. McElwee, 67 Pa. 311; Johnson v. Railroad, 70 Pa. 357; Railway Co. v. Pearson, 72 Pa. 169; McKee v. Bidwell, 74 Pa. 218; Crissy v. Railway Co., 75 Pa. 83; Fox v. Booth, 32 Legal Int. 283; Schum v. Railroad Co., 107 Pa. 8; Railroad Co. v. Coon, 111 Pa. 430; Railroad Co. v. Peters, 116 Pa. 206: Arnold v. Railroad, 115 Pa. 135.

The pedestrian had the right to cross, and the railroad company had a right to operate its cars; both were bound to take reasonable and ordinary care; neither had the absolute right of way: Schmidt v. McGill, 120 Pa. 412; Schwarts v. Brahm, 130 Pa. 411; Bodge v. Phila., 167 Pa. 492; Rauscher v. Traction Co. 176 Pa. 349.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

John Blaney, husband of plaintiff, while attempting to cross defendant's tracks at Leamey street crossing of Lehigh avenue, on September 21, 1895, was struck by a car and killed. The car tracks are on Lehigh avenue, an unusually broad street; there are double tracks in the centre for cars, running east and west, with a space between of six feet. The deceased attempted to cross from the north to the south side of the avenue; just as he left the curb, a car approached on the north track, the one next him, running westward; he stopped about four feet from the track, and as soon as the car passed, attempted to cross, and was struck by a car running eastward on the south track. There was evidence for the jury, such as rapid running at that point, failure to sound the gong, and inattention of motorman, tending to show negligence of defendant. The plaintiff brought suit for damages. At the trial, the learned judge of the court below, submitted two questions to the jury: 1. Was defendant negligent? 2. Was deceased negligent? The jury found for plaintiff on both, and defendant appeals, assigning for error, the refusal of the court to peremptorily instruct the jury, deceased was guilty of contributory negligence, and therefore plaintiff could not recover.

The defendant called no witnesses; consequently, the only question is, whether plaintiff's evidence disclosed a case of contributory negligence.

The deceased was a weaver by trade, was fifty-four years of age, in full possession of the senses of sight and hearing; had been a resident of the city for several years. He must be assumed to have possessed ordinary intelligence and therefore, was bound to know the double tracks were for the passage of cars in opposite directions; he stopped until the west bound car passed in front of and away from him, then, immediately started to cross both tracks, and did not stop before being struck. This is testified to by all of plaintiff's witnesses who saw the accident, five in number; two of them state he seemed to "cut catty-cornered" across, as if to avoid the car; one says he ran into the car. But, if any fact can be established by unvarying, concurrent testimony, it is that, immediately after the car passed west, he started to cross the intervening six feet to the other side of the tracks, and did not stop for an...