Cleary v. Pittsburgh, Allegheny & Manchester Traction Co.

• Decision Date: 04 January 1897
• Docket Number: 179
• Citation: 179 Pa. 526,36 A. 323
• Parties: Mary Cleary v. The Pittsburgh, Allegheny & Manchester Traction Company, Appellant
• Court: Pennsylvania Supreme Court

36 A. 323

Mary Cleary v. The Pittsburgh, Allegheny & Manchester Traction Company, Appellant

179 Pa. 526

No. 179

Supreme Court of Pennsylvania

January 4, 1897

Argued November 5, 1896

Appeal, No. 179, Oct. T., 1896, by defendant, from judgment of C.P., No. 1, Allegheny Co., March T., 1895, No. 450, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before COLLIER, J.

At the trial it appeared that plaintiff, a woman sixty years of age was injured by a collision with one of defendant's electric cars on August 20, 1894, at about half past seven in the evening. The accident occurred in Pittsburg, at the end of the Sixth street bridge across the Allegheny river between the cities of Pittsburg and Allegheny. The car which struck the plaintiff stopped, and the plaintiff also stopped before crossing, and then both started so nearly together that a collision was unavoidable.

The court charged in part as follows:

[Now she alleges that when she was coming along the pathway upon which she was lawfully walking and came to the crossing in pursuing her journey down Sixth street, that while she was on the pavement, and before she crossed, she looked to see if there was a car about to go over the crossing, or close enough to reach it before she could cross. She says she did not see any, and then continued on her way; that she stepped down on the crossing, and when she got on the track or on the roadway, one or the other, she looked again. This was in the dusk of the evening, but the testimony is that there was plenty of light from the electric lights. She says she saw no car about to go over the crossing. Now, you will observe that the car has a right to pass over that crossing before it stops; it has a right to go over it to deliver passengers and not stop on the crossing. She alleges that after having looked the second time she was struck, and that she knows no more about it until she came to her senses in the hospital.] [She then calls the witness Mr. O'Hara, who says he was standing at the corner of the Kennedy building, the old Morgan building, on the corner of Sixth street and Duquesne way. He says it was about dusk in the evening; that he saw the car twenty or twenty-two feet back of the old lady, coming at a good speed. He said he wouldn't give an opinion as to the rate at which the car was traveling, but that it was a pretty good speed; that somewhere about the tollhouse he observed the motorman turn his head to hollo, or say something to the motorman on another car which he says was passing in the opposite direction at that time; that when the car got to the corner the motorman turned his head back again to check up; that he observed this old lady, the plaintiff, just about that time step off the sidewalk onto the street, and you will remember that where the curve comes around there, it is a very short distance from the track to the curb, according to the evidence. He says that she stepped down there, and when she got on the track, she was struck, and that he went with another man to pick her up.]

If the old lady looked and found that the car was not close enough to pass over the crossing before she could reasonably expect to get over; if it was in actual motion and was about to cross and she looked and saw it, then her duty was to stop till it got by, because it had the right to cross; the road had the superior right to cross. Again, under such circumstances, if she did not look (she was not bound to stop; to stand still; you are not bound to stop every time you come to a railroad crossing of this kind in the streets, and if you see a car two squares away, wait till it goes by before crossing), and there was a car approaching and about to cross, it was her own fault.

On the other hand, if she did look, and being an old lady, and it being the dusk of the evening, she did not see the car, and it was coming on at a pretty good rate of speed on this down grade, and if further -- which is disputed -- you find that the motorman was not paying attention to his business, was not keeping a lookout for this crossing on a down grade, but just before the accident happened, up at the tollhouse, was turning his face in another direction and talking or halloing to somebody else, although he turned back and looked before he actually got to the crossing, or if you find that all of these circumstances, speed and all, constituted negligent conduct on his part, and that the old lady was on the road or on the track at the time he started his car around the curve she would be entitled to recover, provided you find at the same time that there was no negligence on her part which...