Castor v. Schaefer

• Decision Date: 29 March 1909
• Docket Number: 244
• Citation: 73 A. 329,224 Pa. 208
• Parties: Castor, Appellant, v. Schaefer
• Court: Pennsylvania Supreme Court

73 A. 329

224 Pa. 208

Castor, Appellant, v. Schaefer

No. 244

Supreme Court of Pennsylvania

March 29, 1909

Argued January 12, 1909

Appeal, No. 244, Jan. T., 1908, by plaintiffs, from order of C.P. No. 2, Phila. Co., Dec. T., 1905, No. 4,148, refusing to take off nonsuit in case of Louisa Castor, a minor, by her next friend and guardian, Calvin H. Castor, and George J Castor, Administrator of the Estate of Frank H. Castor deceased, v. Louisa K. Schaefer and John Birkman, Executor of George Birkman, deceased. Reversed.

Trespass to recover damages for personal injuries. Before WILTBANK, J.

The facts are stated in the opinion of the Supreme Court.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned was the order of the court refusing to take off nonsuit.

Judgment reversed and procedendo awarded.

Augustus T. Ashton, with him Victor Frey, for appellants. -- The appellants contend that under the following cases the testimony shows that the defendant was negligent: Schmidt v. McGill, 120 Pa. 405; Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320; Streitfeld v. Shoemaker, 185 Pa. 265; Boggs v. Railroad Co., 216 Pa. 314; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Henson v. Arthur, 217 Pa. 156.

Joseph W. Catharine, for appellees. -- Plaintiffs failed to prove that the driver of the team into which the girl plaintiff ran, was guilty of negligence in the management of it, and that such negligence was the proximate cause of the accident: Summers v. Brewing Co., 143 Pa. 114; Small v. Rys. Co., 216 Pa. 584; Cunningham v. Bellknap, 60 S.W. Repr. 837; Gottwald v. Bernheimer, 6 Daly, 212; Kochesperger v. Rapid Transit Company, 217 Pa. 320; McCahill v. Kipp, 2 E. D. Smith (N.Y.), 413; Quinlan v. Railroad Co., 4 Daly, 487; Streitfeld v. Shoemaker, 185 Pa. 265; Kleinert v. Ice & Coal Co., 6 Pa. Superior Ct. 594; Schwartz v. Brahm, 130 Pa. 411; Hensen v. Arthur, 217 Pa. 156; Funk v. Electric Traction Co., 175 Pa. 559; Goshorn v. Smith, 92 Pa. 435; Baker v. Fehr, 97 Pa. 70; Kelly v. Traction Co., 204 Pa. 623; Strawbridge v. Bradford, 128 Pa. 200; Rachmel v. Clark, 205 Pa. 314; Parker v. Ry. Co., 207 Pa. 438; Kehler v. Schwenk, 144 Pa. 348; Dynes v. Bromley, 208 Pa. 633; Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520; Nagle v. Railroad Co., 88 Pa. 35.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE STEWART:

The plaintiff, a young girl under the age of fourteen, while attempting to cross a street in the city of Philadelphia, at a public crossing in daytime, was run over by a passing team driven by George Birkman, the original defendant, since deceased, whose executors have been substituted on the record. It was charged that plaintiff had sustained her injuries in consequence of the negligence and carelessness of defendant in driving his horse at a rapid and excessive rate of speed, and failure on his part to direct its course of travel with due regard to the safety of the plaintiff. At the close of the testimony offered on part of plaintiff, the court directed a nonsuit, which it afterwards refused to take off. We are not permitted to know the considerations which prevailed to determine this action of the court, since no opinion was filed and no expression of view is to be found in the record. Whatever these considerations may have been, we think them inadequate to support the nonsuit. With respect to the question of the defendant's negligence the inference to be derived from the testimony is fairly debatable. Apart from the plaintiff, whose narrative of the occurrence is lacking in particularity, but two witnesses testified as to how the accident befell. Their testimony is not in exact accord, due perhaps to the circumstance that their points of observation were not the same; but however this may be, in considering the question now before us, we must have regard to the testimony which makes most strongly for the plaintiff's contention. It is always for the jury to reconcile conflicting statements of witnesses and say which is to prevail. The testimony presents this view of the occurrence: Plaintiff was walking east on Howell street and had reached the north crossing of Torresdale avenue. Before attempting the crossing she looked up the avenue and saw a fire engine coming south but no other vehicle coming from that direction. She had ample time to clear the crossing before the engine could reach it, but thought it prudent to walk rapidly. There is a double line of railway tracks on the avenue; the one on the west side, where plaintiff was, is ordinarily used for travel moving south, the other for travel moving north. As plaintiff stood on the pavement before starting to cross, a lumber wagon came along proceeding northward on the track farthest from her. It had reached the crossing when she...