Downey v. Pittsburg, Allegheny & Manchester Traction Co.

• Decision Date: 16 April 1894
• Docket Number: 247
• Citation: 28 A. 1019,161 Pa. 131
• Parties: Downey v. Pittsburg, Allegheny & Manchester Traction Co., Appellant
• Court: Pennsylvania Supreme Court

28 A. 1019

161 Pa. 131

Downey v. Pittsburg, Allegheny & Manchester Traction Co., Appellant

No. 247

Supreme Court of Pennsylvania

April 16, 1894

Argued November 6, 1893

Appeal, No. 247, Oct. T., 1893, by defendant, from judgment of C.P. No. 3, Allegheny Co., Feb. T., 1892, No. 213, on verdict for plaintiff, John Downey. Affirmed.

Trespass for personal injuries, and for injury to horses and wagon, by collision with electric car. Before MCCLUNG, J.

At the trial there was evidence to the effect that, on Oct. 29 1891, plaintiff, while driving a team of horses hitched to a heavy market wagon, was injured by a collision with a trolley car, running at a high rate of speed without warning, at the intersection of Locust street and Beaver avenue in Allegheny city. The company defendant operated a double track of electric railways on Beaver avenue. Plaintiff testified that he stopped, looked and listened a rod or a rod and a half from the track. "I could see a little distance up the track, but on account of the corner buildings you couldn't see very far. . . . I couldn't see no car and I couldn't hear none. . . . The horses heads were forninst the curb on Beaver avenue, and I was back the length of the horses, and I could see up the street I think far enough to get across."

Defendants' points were among others as follows:

"1. If the jury believe from the evidence that the plaintiff stopped, looked and listened before crossing the tracks of the defendant company, and his presence on the track, and the collision with the company's car, were simultaneous, he must have seen the approaching car; and to have attempted to cross in front of the approaching car, under the circumstances, was grossly negligent on the part of the plaintiff, and he cannot recover. Answer: That is refused. As a matter of course, the presence of the plaintiff on the track simultaneously with the plaintiff's (defendant's) car was a necessity; otherwise the accident could not have occurred, and we cannot charge you that the mere occurrence of the accident shows gross negligence on the part of the plaintiff." [1]

3. Request for binding instructions. Refused. [2]

Verdict and judgment for plaintiff for $1,080.83.

Errors assigned were (1, 2) above instructions, quoting them.

Judgment affirmed.

A. M. Neeper, for appellant, cited: Carson v. Ry., 147 Pa. 225; Ehrisman v. Ry., 150 Pa. 186.

Thomas M. Marshall, Jr., Frank P. Sproul with him, for appellee. -- In the cases cited by appellant, contributory negligence was undisputed.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE McCOLLUM:

The sole contention of the appellant company is that the injuries to the person and property of the plaintiff were occasioned by his own negligence. It rested its motion for a compulsory nonsuit distinctly upon this proposition, and its argument in this court was devoted exclusively to the maintenance of it. It certainly cannot successfully contend that under the evidence in the case the court should have instructed the jury to render a verdict in its favor on the ground that there was no negligence on its part, because if the plaintiff's witnesses were believed the collision was chargeable to the extraordinary speed of its car and the failure to give the usual signals in approaching the crossing. We are therefore warranted in concluding that its third point was based on the same ground as its motion for a nonsuit.

It may be conceded that if it plainly appeared in the plaintiff's evidence that he was guilty of negligence in crossing the tracks when and in the manner he did, and such negligence was responsible in any degree for the injuries for which he claims compensation from the appellant company, this point should have been affirmed. But...