Harris v. Commercial Ice Co.

• Decision Date: 20 February 1893
• Docket Number: 415
• Citation: 25 A. 1133,153 Pa. 278
• Parties: Harris v. Commercial Ice Co., Appellant
• Court: Pennsylvania Supreme Court

25 A. 1133

153 Pa. 278

Harris v. Commercial Ice Co., Appellant

No. 415

Supreme Court of Pennsylvania

February 20, 1893

Argued January 4, 1893

Appeal, No. 415, Jan. T., 1892, by defendant, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1890, No. 608, on verdict for plaintiff, Nathaniel Harris.

Trespass for personal injuries.

The facts, as they appeared before BIDDLE, J., are stated in the opinion of the Supreme Court.

Binding instruction for defendant was refused. [3]

Verdict and judgment for plaintiff for $3,500. Defendant appealed.

Error assigned was (3) above instruction, quoting it.

Judgment reversed.

Gavin W. Hart, for appellant, cited, Buzby v. Traction Co., 126 Pa. 559; Carroll v. R.R., 12 W.N. 348; Myers v. R.R., 150 Pa. 386.

D Webster Dougherty, for appellee, cited, Kohler v. R.R., 135 Pa. 357; Schmidt v. McGill, 120 Pa. 412; Brown v. Barnes, 151 Pa. 562.

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

OPINION

MR. MITCHELL, JUSTICE:

The evidence leaves no doubt of the negligence of defendant's driver, and the only question therefore is the contributory negligence of plaintiff. Unfortunately the evidence leaves as little doubt as to this. Birchall says, "I saw Mr. Harris leaving the curb, and almost instantly he was struck by this ice wagon," and Albright says, "I saw this gentleman about putting his foot on the crossing . . . and just as he got his foot over, and he had hardly got his other foot over, the wagon struck him with the first wheel." Both testified that the wagon was coming up the street very rapidly, "full tilt" and "on a run" are their expressions, and that there was nothing in the way to prevent plaintiff seeing it, if he had looked. There is a slight discrepancy as to the place of the wagon, Birchall stating that it was on the car track in the middle of the street, and Albright that it was on the south side, nearest to the curb from which the plaintiff stepped. These are plaintiff's own witnesses and they are the only ones who saw the accident. The unquestionable facts, the short distance from the curb to the wagon's line of travel, the almost instant collision after stepping from the curb, and the point of contact, not with the horses but with the wheel, establish a situation explainable only by the plaintiff's own statement to the police officers that he didn't hear the wagon (or see it, as he should have added) and "walked into it." The defendant's evidence corroborates and makes perfectly plain this view of the cause of the accident. If it involved any contradiction of the plaintiff's case, it would of course have to go to the jury, but there is no conflict at all, the testimony on the part of defendant merely rounds out and completes the account which the plaintiff had already clearly outlined. Reckless driving and heedless walking produced a combined result of injury.

The law of the case needs...