Henderson v. United Traction Co.

Citation51 A. 1027,202 Pa. 527
Decision Date12 May 1902
Docket Number25
PartiesHenderson v. United Traction Company, Appellant
CourtUnited States State Supreme Court of Pennsylvania

Argued October 29, 1901

Appeal, No. 25, Oct. T., 1901, by defendant, from judgment of C.P. No. 1, Allegheny Co., Dec. Term, 1898, No. 249, on verdict for plaintiff in case of Robert Henderson v. United Traction Company. Affirmed.

Trespass to recover damages for death of plaintiff's wife. Before STOWE, P.J.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $1,750. Defendant appealed.

Error assigned was in refusing binding instructions for plaintiff.

The judgment is affirmed.

J. H Beal, with him Knox & Reed, for appellant. -- The mere negative testimony of a witness that he did not hear any bell, especially where, as here, there is nothing but the naked statement that he did not hear, is insufficient to prove negligence: Hauser v. Central R.R. Co., 147 Pa. 446.

No standard of speed was shown: Yingst v. Lebanon, etc., St Ry. Co., 167 Pa. 438; Kline v. Electric Traction Co., 181 Pa. 276; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332.

Mrs. Henderson was guilty of contributory negligence: Buzby v. Phila. Traction Company, 126 Pa. 559; Warner v. Peoples' St. Railway Company, 141 Pa 615; Nugent v. Phila. Traction Company, 181 Pa. 160; Blaney v. Electric Traction Company, 184 Pa. 524; Gilmartin v. Lackawanna Valley Rapid Transit Company, 186 Pa. 193; Watkins v. Union Traction Company, 194 Pa. 564; McGovern v. Union Traction Company, 192 Pa. 344; Sullivan v. Consolidated Traction Company, 198 Pa. 187; Gray v. Fort Pitt Traction Company, 198 Pa. 184; Holmes v. Union Traction Company, 199 Pa. 229; Reber v. Pittsburg, etc., Traction Company, 179 Pa. 339.

Frank A. Ammon, with him Samuel A. Ammon and Rody P. Marshall, for appellee. -- It is not negligence per se for a citizen to be upon the tracks of a street railway so long as the right of a common user of the tracks exists in the public. It is the duty of a passenger railway company to exercise such watchful care as will prevent accidents or injury to persons, who, without negligence on their part, may not at the moment be able to get out of the way of a passing car: Thatcher v. Central Traction Co., 166 Pa. 66; Jackson v. Pittsburg, etc., Traction Co., 159 Pa. 358; Harkins v. Pittsburg, etc., Traction Co., 173 Pa. 149; Smith v. Phila. Traction Co., 3 Pa. Superior Ct. 129; Beard v. Reading City Pass. Ry. Co., 3 Pa.Super. 171.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

PER CURIAM:

From the testimony presented by the plaintiff it appeared that the car which struck and killed his wife was running at the rate of eighteen or twenty miles an hour over a public crossing on Fifth avenue in a populous part of the city of McKeesport. This was double the ordinary speed of cars on the avenue. No notice of the approach of the car to the crossing was given, and no attempt was made to check its speed or to stop it until the instant of the collision. It ran 180 feet after the collision. When at the curb the deceased stopped and looked in the direction of the car. The car was then 200 and possibly 400 feet from the crossing. She had then but thirteen feet to walk in order to clear the track. She was struck by the car when within one step of being fully across.

If she saw a clearly impending danger and acting on her own judgment accepted the risk,...

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2 cases
  • Dow v. Des Moines City Ry. Co.
    • United States
    • Iowa Supreme Court
    • June 16, 1910
    ...95 N. W. 751;Consolidated Co. v. Glynn, 59 N. J. Law, 432, 37 Atl. 66;Chicago Co. v. Fennimore, 199 Ill. 9, 64 N. E 985;Henderson v. United Co., 202 Pa. 527, 51 Atl. 1027;Newark v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374 (this case being closely in point); Smith v. Trunk Lin......
  • Dow v. Des Moines City Ry. Co.
    • United States
    • Iowa Supreme Court
    • June 16, 1910
    ... ... and two inches in width. All the cars on defendant's line ... carried United States mail boxes, and the public was invited ... to stop them at street crossings for the purpose ... 432 (37 A. 66); Chicago Co. v ... Fennimore, 199 Ill. 9 (64 N.E. 985); Henderson v ... United Co., 202 Pa. 527 (51 A. 1027); Newark v ... Block, 55 N.J.L. 605 (27 A. 1067, ... ...

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