Darwood v. Union Traction Co.

• Decision Date: 30 January 1899
• Docket Number: 117
• Citation: 189 Pa. 592,42 A. 290
• Parties: Joseph E. Darwood, Appellant, v. The Union Traction Company
• Court: Pennsylvania Supreme Court

42 A. 290

189 Pa. 592

Joseph E. Darwood, Appellant, v. The Union Traction Company

No. 117

Supreme Court of Pennsylvania

January 30, 1899

Argued January 12, 1899

Appeal, No. 117, January T., 1898, by plaintiff, from judgment of C.P. No. 1, Phila. County, September T., 1897 No. 801, on verdict for defendant. Affirmed.

Trespass for personal injuries.

The facts appear by the charge of the court below, which was as follows:

I feel that I will be obliged to affirm the defendant's point which will give binding instructions to find for the defendant. I do that for this reason: Of course we all realize that the court and all of us are bound by the decisions of the Supreme Court upon these subjects, and there are very few phases of this question which have not been before the Supreme Court, and which have been passed upon. Where they have been squarely made, there is no course for me nor the jury to take but to follow the decisions of the Supreme Court. The duty of the driver of a wagon and the motorman of a car is, in a general way, the same as they approach street crossings. It is the duty of the motorman of a car to reduce the speed and have his car under control, so that if occasion arises he will be able to prevent an accident by stopping his car. That duty was not fulfilled in this case. By the testimony of the motorman himself he admitted that he had crossed Carpenter street without slackening up at all -- thought probably there was nobody there, and he could make it. He was negligent, and I have no doubt at all of the negligence of the defendant. And the course I have indicated that I am about to take, results entirely from my view of the contributory negligence on the part of the plaintiff. Unfortunately for him, as the driver of a horse and wagon, it was his duty to do just the same thing as it was the motorman's duty to do. It was his duty to slow up as he approached a street crossing, to avoid an accident if some other person was crossing in front of him or should suddenly appear there as in danger of being run down or causing a collision. He did not do that to any appreciable extent. He says, while he reduced somewhat the speed of his horse, he did not have his horse under control because, when his horse's feet were on the first rail of the track, seeing the car, he was unable to check his horse, and it did not occur to him, as he said, to pull his horse round to the right and thus clear the track and let the car pass, which would have been the wisest thing to do, and it is probably not to be wondered at that in the excitement of that moment the danger was imminent, and he forgot or failed to remember that by simply pulling his horse round to the right he could have cleared the track and the car would have passed him. . . .

But to pass that, there is the other thing, that this man failed to look and to make any investigation as to the approach of a car until he got clear of the awning line or line of awning if I may say so, because he says his view was obstructed in making the investigation which a man ought naturally and properly to make when he gets clear of the house line. He was obstructed by the flap of the awning, and probably a little further on by the articles of merchandise that were hanging in front of this store. But, as a matter of fact, he did not make the investigation which resulted in giving him a view of the track, until he got clear to the track or until, as he puts it, his horse's front feet were on the track, and when he saw it he could not pull his horse back because it was obstinate, and he did not pull to the right, but thought he would take the chance of going on. When he did see it, the car was 115 feet away, to the best of his knowledge. He fixed it by a post which he afterwards measured, and I do not think the case of Jackson v. Railroad applies, because he was not misled by the speed of the car, for he says that the car was going very fast, and in response to a question with the word "furious" as a proper description of the speed, he said yes, that was it -- going at a furious rate when he saw it. At least, he saw the car when his horse was at the track, 115 feet off, going at a very rapid rate. He then went on and took the chance. That was a negligent thing to do unless it was excused to make an investigation that resulted in seeing, and the object of an investigation is to see and to know and to inform one's self as to the approach of a car, and it would be ordinary negligence not to make that investigation until one's horse's feet were on the track. He attempts to excuse that by saying that he could not make the investigation at any other place; that when he came to the house line his vision was obstructed by the awning, as I have said and by the articles of merchandise, and that therefore he looked at the first place that the opportunity offered. That is answered by his own testimony partially, when he admits that if he had stooped down low enough he could have seen up the street at the house line and had a view of the street,...