Greer v. Tyson

• Decision Date: 04 April 1898
• Docket Number: 6
• Citation: 185 Pa. 356,39 A. 1115
• Parties: John Greer, Appellant, v. Harry G. Tyson
• Court: Pennsylvania Supreme Court

39 A. 1115

John Greer, Appellant, v. Harry G. Tyson

185 Pa. 356

No. 6

Supreme Court of Pennsylvania

April 4, 1898

Argued March 24, 1898

Appeal, No. 6, Jan. T., 1898, by plaintiff, from order of C.P. No. 3, Phila. Co., June T., 1897, No. 779, refusing to take off nonsuit. Affirmed.

Trespass to recover damages for personal injuries inflicted upon plaintiff by defendant's servant. Before FINLETTER, P.J.

At the trial plaintiff described the accident as follows:

"A. On the 17th day of June, 1897, between half past six and seven o'clock, I was riding on Diamond street on the north side, going west, and when I came near to the corner of Diamond and Marshall streets, I heard the noise of a horse and wagon, and I looked and saw the wagon coming at a reckless speed, and the horse's head was towards my corner. I first thought I would jump off my wheel, and I thought it would not be safe because the horse was going so fast I would not have time to move the wheel or myself, and I had not time to turn up Marshall street. I called to the driver when I saw him, to look out, and loud enough for another man across Marshall street to hear me, and, as I said that, I moved into the center of the street, thinking the man was going east, and when I got to the other place this young man ran into me, and the three of us went down in the street. Q. He was going east, and you were going west? A. Yes, sir. Q. Was it the center of Diamond street at Marshall street that it occurred? A. Yes, sir. Q. His actions were such as to let you think that he was going to turn eastward into Diamond street on the north side? A. Yes, sir. Q. And he swerved around, and you came together? A. Yes, sir. I saw him coming my way, and I called to him, and I turned to give him more room. The horse jammed me on the left leg, and the wheel went right over my right leg, and the horse struck me with his foot in the hip and chest. The wheel of the wagon went over my right leg."

On cross-examination plaintiff testified as follows:

"Q. When he turned the horse's head, the wagon had not crossed Diamond street? A. Not at the time I saw the horse's head turn. Q. What portion of the wagon did you strike with your wheel? A. I did not strike any. Q. You did not touch the wagon? A. No, sir. Q. There was a bicycle rider coming from the west towards the east? A. Yes, sir. Q. And in consequence of your turning out, from the right-hand side you collided with the bicycle on the other side? A. No, sir. Q. Do you swear that you did not collide with that bicycle? A. No, sir. Q. Then what did you collide with? A. When I moved out into the center of the street this young man was coming along, and he got to the same place I did. Q. If you did not collide with the wagon or bicycle with what did you collide? A. The horse and the bicycle and myself all collided in a lump The horse tramped on me, and we all went down in a lump. Q. What was the cause of you all falling together? A. The horse came on top of us. Q. You had not touched the wagon yet, and you say you did not touch the bicycle -- how did you come to be injured? A. If you will let me explain, I will. When I came out into the middle of the street to give the man room to go around the corner, the other young man saw the wagon as though it was going to turn the corner, and he came into the center of the street also, and his wheel touched the back of my wheel, and two of us went down and the horse went over us."

The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned was refusal to take off nonsuit.

Judgment affirmed.

Thomas A. Fahy, for appellant. -- Where plaintiff, on part of his testimony, is entitled to go to the jury, and on the other part is not, the case must go to the jury, whose province it is to reconcile the conflicting statements: Glase v Philadelphia, 169 Pa. 488; ...