McGovern v. Union Traction Co.

• Decision Date: 19 July 1899
• Docket Number: 66
• Citation: 192 Pa. 344,43 A. 949
• Parties: Bernard McGovern, Appellant, v. Union Traction Company
• Court: Pennsylvania Supreme Court

43 A. 949

192 Pa. 344

Bernard McGovern, Appellant, v. Union Traction Company

No. 66

Supreme Court of Pennsylvania

July 19, 1899

Argued April 3, 1899

Appeal, No. 66, Jan. T., 1899, by plaintiff, from order of C.P. No. 4, Phila. Co., Sept. T., 1895, No. 258, refusing to take off nonsuit. Reversed.

Trespass to recover damages for the death of plaintiff's wife.

The facts appear by the opinion of AUDENRIED, J., entering nonsuit, which opinion was in part as follows:

This is an action of trespass, brought by Bernard McGovern against the Union Traction Company to recover damages by reason of the killing of his wife through the alleged negligent operation of a car on South street by the officers, agents or employees of the defendant corporation. The plaintiff's case, as I recall the testimony, is this:

On November 23, 1895, Mrs. McGovern started to cross South street on the east line of Barnwell street. According to the testimony of several witnesses, as she left the curb on the south side of South street a trolley car owned and operated so far as the evidence disclosed, by the Electric Traction Company, was approaching. South street at this point falls rapidly, at a steep grade. When she left the curb line this car was at or near the line of Twenty-sixth street. According to one witness it was east of Twenty-sixth street, according to another it was at Twenty-sixth street, and according to a third it was about one house west of Twenty-sixth street. The point is, that the car was no very great distance off. That is to say, it was within approximately 150 feet of where this woman was when she started to cross the street. That car was approaching with a very high degree of speed. One witness likened its speed to the whizzing of a shot. Another said it was coming two or three times faster than any other street car that he had ever seen. Mrs. McGovern advanced across the street. We have had no testimony on the question of whether or not she continued her observation of the car, although it is in evidence that before leaving the curb she looked up and down the street, apparently for the purpose of ascertaining whether or not she had anything to fear from cars or wagons. After she had got on the track on the north side of South street, that being the track on which this electric car was approaching, she was struck, somewhere between the two rails. She was knocked down and rolled under the car for some distance, and the car, by reason of its speed, and the inattention of the motorman, who does not seem to have been aware that the woman had been struck, was not stopped until it had almost reached Chippewa, or Twenty-seventh street. At that point the car wheel passed over the woman's body and cut her in two, and she died. The bell, according to the testimony of witnesses whom we have heard, was not rung as the car approached Twenty-sixth street or as it approached Barnwell street. The motorman seems to have had his face averted from the direction in which the car was going, and was looking back toward the conductor, or off to one side. He was not looking in the direction in which the car was going. Those are the facts which have been made to appear so far as concerns the actual occurrence out of which this proceeding has arisen.

It lies on the plaintiff, in a case like this, when an action is brought in trespass, to establish the negligence of the defendant, and the fact also that the injuries from which the plaintiff's alleged damages have resulted were the proximate results of that negligence.

I apprehend that it would be my duty to let this case go to the jury if the only question involved was as to whether or not supposing that the car has been shown to have at that time been in the control and under the operation of the Union Traction Company, one of the defendant's employees had been negligent. Facts enough have been proved here, I think, to make it a matter from which negligence could be inferred. But the plaintiff must show more than that. The plaintiff must not only show negligence, but that the injuries of his wife and her death were proximate results of that negligence, and were not superinduced or contributed to by any other cause which has intervened. But here we have, I think, a supervening cause, that of Mrs. McGovern's own imprudence or carelessness, which appears to have contributed quite as much to her lamentable death as the negligence of the motorman on the car by which she was killed.

The car is said by the witnesses to have been in plain sight. Her eyesight is said to have been good. The day was clear, and not foggy. It was between 9 and 10 o'clock in the morning, and there was nothing to prevent her from seeing this car. If she did not see it it was because she did not look, and the witnesses who have said that she did look have not told the truth. Supposing she did look, she must have seen the car, and not only must have seen the car, but have seen that the motorman was not attending to his business. She must also have noticed the fact, which several witnesses have testified to, that the car was coming at a very unusual rate of speed. Despite those facts, which she ought to have seen she started to cross the street. The only inference to be drawn from the fact that she was struck by the car under those conditions is that she discontinued her observation; that she did not again glance toward the car, but took the chances, thinking she could get across ahead of it. To my mind her conduct, quite as much as the negligence, if we may so call it, of the motorman on that car, contributed to what happened. On that ground alone I think that the entry of a nonsuit would be proper....