Diamond v. Cowles

• Decision Date: 24 November 1909
• Docket Number: 32.
• Citation: 174 F. 571
• Parties: DIAMOND v. COWLES et al.
• Court: U.S. Court of Appeals — Third Circuit

174 F. 571

DIAMOND v. COWLES et al.

No. 32.

United States Court of Appeals, Third Circuit.

November 24, 1909

Alexander Simpson, Jr., and W. W. Snithers, for plaintiff in error.

Thomas Leaming, for defendants in error.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

GRAY Circuit Judge.

The facts disclosed by the record brought up by this writ of error are as follows:

Bryn Mawr avenue, 60 feet broad, 42 feet from curb to curb, runs approximately north and south in Montgomery county, on the outskirts of Philadelphia. It is crossed at right angles by Union avenue, 40 feet wide, running east and west. On the afternoon of the accident, Ely Cowles (hereinafter called the plaintiff), a mute boy of about 18 years of age, an inmate of a nearby Home for the Feeble-Minded, left the southwest corner of these two avenues, and was crossing Bryn Mawr avenue diagonally in a southeasterly direction, toward a person who was waiting for him on the east side of said avenue, at a point 97 feet south of said Union avenue. Consequently, his back was almost squarely presented to any vehicle approaching from the north on Bryn Mawr avenue. Such a vehicle would be visible to him only upon turning around or at least looking backward over his left shoulder. Patrick Diamond, the plaintiff in error and defendant below (hereinafter called the defendant), was driving an automobile, containing his wife and another lady, both sitting back of him, upon the west side of Bryn Mawr avenue the side from which the boy attempted to cross, thus approaching him from behind. Defendant's machine was therefore on the right-hand side of the road and was running about 15 feet from the curb. Plaintiff, while thus crossing Bryn Mawr avenue diagonally, 'at a good gait,' was reading a note, which he held in both hands. The boy, though somewhat feeble-minded, was in appearance normal and robust. The testimony shows that the defendant was driving his machine at not an excessive rate of speed. There is testimony that, as the motor car approached the north side of Union avenue, the ladies in the car were laughing loud enough to attract attention of persons on the avenue, and to cause the defendant to turn his head around. This is denied by the defendant and by the occupants of the car.

There is also testimony that, as the car was on the north crossing of Union avenue, at about the time the plaintiff started to cross Bryn Mawr avenue, there was a scream as of alarm from the ladies in the motor car. The plaintiff kept straight on his diagonal course across Bryn Mawr avenue, and the car continued straight in the direction in which it was going without slackening speed or swerving from its course until it struck the plaintiff. The evidence is conflicting as to whether the plaintiff was still continuing on his course at the moment of contact with the motor car, or whether, looking around and seeing the car, he stepped back on its course. There is also evidence tending to show that the accident could have been avoided by slackening the speed of the motor car after it had passed the north side of Union avenue and when the boy had commenced to cross Bryn Mawr avenue; also that there was room for the car to have swerved to the right and thus have avoided the accident. There was also evidence tending to show that the defendant was an inexperienced driver of a motor car; in fact, was just learning to manage one, although this fact, if there was no evidence tending to prove negligence, would be unimportant.

The...