Gordon v. Philadelphia Rapid Transit Co.
| Decision Date | 21 April 1919 |
| Docket Number | 266 |
| Parties | Gordon, Appellant, v. Philadelphia Rapid Transit Co |
| Court | Pennsylvania Supreme Court |
Argued March 27, 1919
Appeal, No. 266, Jan. T., 1919, by plaintiff, from judgment of C.P. No. 3, Philadelphia Co., Dec. T., 1917, on verdict for defendant in case of Abraham Gordon v. Philadelphia Rapid Transit Company and Philadelphia Railways Company. Affirmed.
Trespass to recover damages for personal injuries. Before McMICHAEL P.J.
Verdict and judgment for defendant. Plaintiff appealed.
Errors assigned are indicated in opinion of Supreme Court.
The judgment is affirmed.
Roland C. Evans, of Evans, Forster & Wernick, with him Abraham Wernick and I. G. Gordon Forster, for appellant.
Chester N. Farr, Jr., for appellee, was not heard.
Before MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.
Abraham Gordon, alleging that, while leading a horse attached to an ice wagon diagonally across a public highway in the City of Philadelphia, he was negligently run into and injured by a car of defendant company, sued to recover damages; a verdict was rendered for defendant and after judgment thereon plaintiff appealed.
The first assignment of error purports to excerpt a certain part of the charge, but omits from the body of the quotation several words material to the thought which the trial judge voiced therein. When complaint is made against any portion of a charge, the excerpt assigned for error must present completely the phraseology used by the judge in expressing the full thought under immediate consideration, and appellant is not permitted to elide essential words. This assignment is dismissed.
The second assignment complains of instructions, in substance, that the speed of the car was not a controlling factor in determining the alleged negligence of defendant. Here again important words are left out of the excerpt from the charge; for instance, the trial judge first called attention to differences in the testimony on the question of speed, pointing out that this was important to the jury in determining whether they should "believe the motorman's account of the accident or plaintiff's." These instructions are entirely omitted by appellant, who quotes what follows to the effect that, since trolley cars have a right to run fast and the testimony depended upon by plaintiff shows no more than that the present car did so run, such testimony, in the opinion of the judge, need not be considered in deciding the question of defendant's alleged negligence; but he immediately added that the controlling point for decision was whether or not the motorman acted, under the circumstances, as "a careful man in the pursuit of his business should have done . . ., whether the motorman was careless or not," which also is omitted from the matter quoted by appellant. Because of these important omissions, and another, referred to later, the assignment in hand might be denied further discussion; but, as we shall show, there is no substantial merit in the complaint which it endeavors to plead.
If defendant's evidence is believed, plaintiff's horse, without warning, suddenly "wheeled around," bringing the wagon directly in front of the moving car, and the latter stopped almost immediately after the impact; of course, under these circumstances, prior speed of the car is of no importance in determining the question of defendant's alleged negligence. On the other hand, according to plaintiff's version, the car started from a state of rest, some 240 feet away, when the wagon was actually on the track, and then, with the latter vehicle in plain view all the while, rapidly traversed this distance and forcibly collided with it; but, since the testimony relied upon by plaintiff contains no denial that, upon the impact, the car stopped practically at once, the only reasonable conclusion is, if there was any negligence on part of the motorman, this must be attributed to lack of proper manipulation of his car when it came up with the wagon, rather than to prior undue speed.
Moreover plaintiff's declaration contains no charge of, or reference to, undue speed; and, while appellant calls attention to several statements of a general character to the effect that the car was running "very fast," none of these...
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