Holmes v. Union Traction Co.

• Citation: 199 Pa. 229,48 A. 974
• Decision Date: 22 April 1901
• Docket Number: 256
• Parties: Holmes, Appellant, v. Union Traction Company
• Court: United States State Supreme Court of Pennsylvania

48 A. 974

199 Pa. 229

Holmes, Appellant, v. Union Traction Company

No. 256

Supreme Court of Pennsylvania

April 22, 1901

Argued March 25, 1901

Appeal, No. 256, Jan. T., 1900, by plaintiff, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1899, No. 237, on verdict for defendant in case of Sidney Holmes v. Union Traction Company. Affirmed.

Trespass to recover damages for personal injuries. Before McMICHAEL J.

At the trial it appeared that on October 30, 1899, about eleven o'clock in the morning, plaintiff started to cross Girard avenue in Philadelphia on which the defendant company operated two tracks of railway, in order to take a car on the far track. Although the day was rainy, the view of the tracks was not obstructed. She twice saw the car which she expected to take. She stated that when she looked last the car was about half a square off; she continued: "Then I started on, and I had an umbrella, and it was very windy and raining and I did not hear anything until I was knocked over. Q. Where were you when you were struck? A. I was about the middle of the last track."

Defendant set up as a defense a release of damages executed by the defendant with her mark. The plaintiff testified that this paper was presented to her at the hospital when she was suffering great pain; that it was not read to her; that the agent of the defendant lifted her left hand and touched the index finger to the pen; that this was not her voluntary act, but represented the physical force of the agent: that she did not know that she was signing anything, and that she did not know that money had been left near the table at her bed.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

James Gay Gordon, with him W. J. Yorke and Harry A. Mackey, for appellant, cited on the question of contributory negligence: McGovern v. Union Traction Co., 192 Pa. 344; Muckinhaupt v. Erie R.R. Co., 196 Pa. 213; Manayunk & Roxborough Boarding & Livery Stable Co. v. Union Traction Co., 7 Pa. Superior Ct. 104; Davidson v. Schuylkill Traction Co., 4 Pa. Superior Ct. 86; Callahan v. Phila. Traction Co., 184 Pa. 425; West Phila. Pass. Ry. Co. v. Mulhair, 6 W.N.C. 509; Conyngham v. Erie Electric Motor Co., 15 Pa.Super. 573.

Thomas Leaming, with him Dallas Sanders, for appellee, cited on the question of contributory negligence: Watkins v. Union Traction Co., 194 Pa. 564; Hess v. Williamsport, etc., R.R. Co., 181 Pa. 492; Flanagan v. Phila., Wilmington & Baltimore R.R. Co., 181 Pa. 237; Baker v. Penna. R.R. Co., 182 Pa. 336; Blaney v. Electric Traction Co., 184 Pa. 524; Nugent v. Philadelphia Traction Co., 181 Pa. 160; Warner v. Peoples' Street Ry. Co., 141 Pa. 615; Buzby v. Phila. Traction Co., 126 Pa. 559.

Before MITCHELL, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

This case was properly taken from the jury, and we must assume, in the absence of any reason given by the learned trial judge that it was for the right one that...