Fenner v. Wilkes-Barre & Wyoming Valley Traction Co.
| Decision Date | 12 May 1902 |
| Docket Number | 164 |
| Citation | 51 A. 1034,202 Pa. 365 |
| Parties | Fenner v. Wilkes-Barre & Wyoming Valley Traction Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 14, 1902
Appeal, No. 164, Jan. T., 1901, by defendant, from judgment of C.P. Luzerne Co., Jan. T., 1899, No. 102, on verdict for plaintiff in case of John W. Fenner and Emma Fenner v Wilkes-Barre & Wyoming Valley Traction Company and the Borough of Ashley. Affirmed.
Trespass to recover damages for death of plaintiff's son. Before HALSEY, J.
The court gave binding instructions in favor of the borough of Ashley.
The facts are stated in the opinion of the Supreme Court.
Error assigned, among others, was in refusing binding instructions for the other defendant.
The assignments of error are overruled and the judgment is affirmed.
George R. Bedford, with him John T. Lenahan, for appellant. -- The deceased was guilty of contributory negligence: Winter v Federal Street, etc., Pass. Railway Co., 153 Pa. 26; Smith v. Electric Traction Co., 187 Pa. 112.
John McGahren, with him W. H. Hines, for appellee. -- The case was for the jury: Gilmore v. Federal Street, etc., Pass. Ry. Co., 153 Pa. 33; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Thatcher v. Central Traction Co., 166 Pa. 71; Gaughan v. Second Ave. Traction Co., 189 Pa. 410; Cannon v. Pittsburg, etc., Traction Co., 194 Pa. 161; Evers v. Phila. Traction Co., 176 Pa. 380; Buehler v. Union Traction Co., 200 Pa. 179; Callahan v. Phila. Traction Co., 184 Pa, 429.
Before McCOLLUM, C.J., MITCHELL, DEAN, BROWN and MESTREZAT, JJ.
In the trial of the cause in the court below a recovery was resisted on the ground (1) that the evidence showed the deceased guilty of contributory negligence, and (2) that it failed to disclose negligence on the part of the defendant company. The jury found in favor of the plaintiffs on both questions and the defendant has appealed, alleging as error the court's refusal to withdraw the case from the jury.
The accident which resulted in the death of Edwin Fenner, the son of the plaintiffs, occurred on the track of the defendant company on Main street which runs north and south in the borough of Ashley in Luzerne county. The street at this point is closely built up and both sides are densely populated. On the evening of October 10, 1898, the deceased was in charge of a two-horse spring wagon, delivering goods to the customers of his father, who is a wholesale produce merchant. He had in the wagon a barrel of pears weighing about 250 pounds, a keg of quinces and several baskets of grapes for delivery to Daniel Doyle whose store is on the west side of Main street and ninety feet below Hartford street. He drove to Mr. Doyle's place of business and backed the wagon at right angles against the curbstone for the purpose of unloading the produce. In about two minutes thereafter, one of the defendant's cars going north struck the horses and the front part of the wagon, separating the horses from the wagon and carrying it about sixty feet. The car was stopped at the distance of 160 feet from the point of collision, and the dead body of the young man was taken from beneath it. The accident happened about twenty minutes after six o'clock in the evening. It was not dark but "was getting dusk."
At the place of the collision, Main street is about thirty-one feet between the curbstones. Mr. Doyle's property fronts twenty-one feet on Main street and the pavement in front is about twelve feet wide. The defendant's railway track is twelve feet eight inches from the curbstone. Directly in front of the center of Doyle's property and on the pavement near the curb was a pile of flagstones about five feet in length and three feet in width. In the street five feet eight inches north of the flagstone and between the west rail of the track and the curb, was a board pile twenty-seven feet in length, five feet seven inches in width and four and one half feet high. Twenty-nine and one half feet south of the boards and between the curb and the track was a pile of lath, six feet from the track, twenty-two feet in length, about five feet in width and from three to five feet high. The grade of Main street is descending from a point 633 feet south of the Doyle property to the place of the accident, and between those points the view is unobstructed.
In support of their contention that the deceased was guilty of negligence contributing to his death, the learned counsel for the appellant claim that he voluntarily placed himself and his team in a place of known danger, and that after having done so he could still have prevented the accident if he had looked for an approaching car which could have been seen 700 feet distant, which would have enabled him to have removed his team from the track. It is further contended by the appellant that the deceased could have placed his wagon and horses longitudinally with the curb and thereby not encroached upon the defendant's track while the produce was being unloaded.
The facts stated above are undisputed. It, therefore, clearly appears that owing to the obstructions in the street and on the pavement in front of Mr. Doyle's store, the deceased was compelled to back his wagon to the curb to unload his produce unless he deposited it on the pavement in front of another's property and some distance from the store. The distance between the pile of lath and the flagstone was not more than fifteen feet and from the heads of his horses to the rear of the wagon was twenty-one feet. The wagon was so constructed that the front wheels would not turn under the bed and permit the horses to stand at right angles with it. When the wagon stood against the curb which is twelve feet eight inches from the track, the horses were necessarily standing on the track. This was the position in which the driver was required to place his team to deliver Mr. Doyle's produce. It was upon the public highway where the deceased had the right to be and where, in the performance of his duty, he was required to be. It was not a place of known danger and the presence of the railway tracks upon the street did not make it so. The right of the defendant to use the track was superior to the right of the deceased to occupy it, but this well established rule did not prohibit the latter from using it temporarily for a legal purpose nor authorize the defendant company's employees in charge of the car to endanger his life when, by the observance of their duty, it could have been avoided. The place of the accident was in the public street where both parties had a right to be, and where each, therefore, was bound to be on the lookout for the other: Warner v Peoples' St. Railway Co., 141 Pa. 619. The position of the deceased became perilous...
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