McFarland v. Consolidated Traction Co.

• Decision Date: 05 January 1903
• Docket Number: 71
• Parties: McFarland v. Consolidated Traction Company, Appellant
• Court: Pennsylvania Supreme Court

54 A. 308

204 Pa. 423

McFarland v. Consolidated Traction Company, Appellant

No. 71

Supreme Court of Pennsylvania

January 5, 1903

Argued October 28, 1902

Appeal, No. 71, Oct. T., 1902, by defendant, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1900, No. 223, on verdict for plaintiff in case of W. T. McFarland v. Consolidated Traction Company. Affirmed.

Trespass to recover damages for personal injuries. Before McCLUNG, J.

Verdict and judgment for plaintiff for $2,500. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

The assignments of error are overruled and the judgment is affirmed.

James C. Gray, with him Clarence Burleigh, for appellant, cited Winter v. Federal Street & Pleasant Valley Pass. Ry Co., 153 Pa. 26; Gilmore v. Federal Street & Pleasant Valley Pass. Ry. Co., 153 Pa. 31; Gilmartin v. Lackawanna Valley Rapid Transit Co., 186 Pa. 193.

L. K. Porter, with him S. G. Porter, for appellee, cited: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Thatcher v. Central Co., 166 Pa. 66.

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

OPINION

MR. JUSTICE MESTREZAT:

This is an action to recover damages for personal injuries which the plaintiff alleges he sustained by reason of the negligence of the defendant company. On the evening of March 29, 1900, the plaintiff was engaged with a one-horse transfer wagon in removing a piano, weighing about 1,200 pounds, to the residence of Mrs. Eschallier, 157 Larimer avenue, East End, Pittsburg. He drove to the avenue, in the vicinity of the place he was to deliver the piano, and having waited for two street cars to pass, he backed the wagon against the curb, its rear standing at right angles with and against the curb, with the horse standing diagonally across the street car track with its head in the direction of Everett street. With the assistance of three other men the plaintiff began to remove the piano from the wagon, and when it was "half way off," a car of the defendant company coming from the east on an ascending grade struck the horse and shaft and caused the wagon to move, throwing the piano on the plaintiff and severely injuring him. Larimer avenue is twenty-five feet between curbs, and there is an ascending grade from Everett street to the place of the collision, a distance of about 120 feet. There is a single car track on the avenue, nine feet ten inches from the curb, on which the defendant company runs its cars in a westerly direction.

On the trial of the cause in the court below the learned judge, in a charge clear and adequate, submitted the question of the defendant's and plaintiff's negligence to the jury. The verdict was in favor of the plaintiff and from the judgment entered thereon the defendant has taken this appeal. The principal and important error assigned is that the court erred in not affirming the defendant's point, "that under all the evidence the verdict should be for the defendant."

If the testimony of the plaintiff was worthy of credence, the jury was justified in finding that the defendant's motorman was guilty of negligence, which occasioned the plaintiff's injuries. At the time of the accident it was light and he had an unobstructed view of the horse and wagon for three or four squares. When the car was approaching the place of collision and distant therefrom at least 110 feet, the motorman who could, and presumably did, see the horse on the track, disregarded a notice to stop which he heard, although, according to his own testimony, he could have stopped his car within thirty feet. At the time of the accident the car was running at twice its usual or ordinary speed and no warning of its approach was given. We agree with the learned trial judge that if these were the facts "there would be little difficulty in determining that this was the grossest kind of negligence." The verdict of the jury has established the facts as presented by the plaintiff.

In their printed brief of argument, the learned counsel for the defendant attempted to show that the plaintiff's witnesses were not credible and that his testimony was unworthy of belief. We must remind them of what they well know that their argument should have been, and doubtless was, presented in another forum, and that the verdict of the jury, whose province it was, has settled the question against their contention.

It is argued very strenuously that the plaintiff was clearly guilty of...