Bornscheuer v. Consolidated Traction Co.
| Decision Date | 07 January 1901 |
| Docket Number | 141 |
| Citation | 47 A. 872,198 Pa. 332 |
| Parties | Bornscheuer v. Consolidated Traction Company |
| Court | Pennsylvania Supreme Court |
Argued October 25, 1900
Appeal, No. 141, Oct. T., 1900, by plaintiff, from order of C.P. No. 2, Allegheny Co., July T., 1898, No. 369, refusing to take off nonsuit in case of Adam Bornscheuer v. The Consolidated Traction Company. Affirmed.
Trespass for personal injuries. Before WHITE, P.J.
The facts are fully stated in the opinion of the Supreme Court.
The court entered a compulsory nonsuit which it subsequently refused to take off.
Error assigned was in refusing to take off nonsuit.
The judgment is affirmed.
Levi Bird Duff, with him L. B. D. Reese, for appellant. -- To establish contributory negligence, the negligence of the injured must be the clear and unavoidable inference from undisputed facts before the court can pronounce it as matter of law: McGovern v. Union Traction Co., 192 Pa. 344.
If there is a doubt on the question of contributory negligence it must go to the jury: Kohler v. Penna. R. Co., 133 Pa. 346; Ely v. Pittsburg, etc., R.R. Co., 158 Pa 233; Callahan v. Phila. Traction Co., 184 Pa. 425; Jackson v. Pittsburg, etc., Traction Co., 159 Pa. 399; Devlin v. Beacon Light Co., 192 Pa. 188; McGovern v. Union Traction Co., 192 Pa. 344; Raulston v. Phila. Traction Co., 13 Pa.Super. 412.
J. H. Beal, with him P. C. Knox and James H. Reed, for appellee. -- It was the absolute duty of the plaintiff to look for the approaching car, and to do this immediately before he crossed the track: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Carroll v. Penna. R. Co., 12 W.N.C. 348.
Before McCOLLUM, C.J., MITCHELL, FELL, BROWN and MESTREZAT, JJ.
The contributory negligence of the plaintiff was the reason given by the court below for entering the judgment of nonsuit. On November 17, 1897, he was driving eastward on Fifth avenue in the city of Pittsburg, on which are the double tracks of the defendant. The avenue is sixty feet wide. The distance from the tracks to the curb on each side is fourteen feet. While so driving on the south side of the tracks, the plaintiff undertook to cross them at a point where Ivy street runs to, but does not intersect Fifth avenue, his intention having been to go northward on said street. He was nearly across the first or south track when the car of the defendant company going eastward on it struck the rear of his wagon, throwing him into the street and causing the injuries complained of. His testimony was that just as he started to cross the track he looked and saw the car at least 100 yards from him, and he thought he had time to get over. When asked whether he was not guessing at the distance, his reply was, "It was a good piece; it was the other side of the street yet." The street to which he referred was Bellefonte, distant west of Ivy street by actual measurement, according to the testimony of the engineer called, 477 36/100 feet. The plaintiff and his witnesses testified to the rapid speed of the car, the highest rate named being twenty-five or thirty miles an hour. If the car was, as the plaintiff distinctly states, west of Bellefonte street when he looked for the purpose of determining whether he could cross the tracks with safety, and was moving at the highest speed named, at least eleven seconds must have intervened from the time he saw it until it struck him, and in that interval, driving as he says he was -- a little faster than a walk -- he could not only have crossed the first track, but the entire width of the avenue, and been safely on his way on Ivy street. The conclusion is irresistible that the witness was mistaken as to the distance between him and the car when he started to cross the track, and the jury should not have been allowed to believe him. In Carroll v. Penna. R. Co., 12 W.N.C. 348, we held that "it is in vain for a man to say that he looked and listened, if in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive;" and it is equally true that when, with the certainty of an infallible mathematical test applied to the testimony of a witness, he is found to be mistaken in a material matter, it would be a travesty upon justice to allow a jury to consider such testimony and a license to them to render a false, instead of a true finding. Such testimony is either intentionally false or mistakenly so; and, in either case, the court...
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