McMahen v. White

• Decision Date: 12 March 1906
• Docket Number: 44-1905
• Citation: 30 Pa.Super. 169
• Parties: McMahen v. White, Appellant
• Court: Pennsylvania Superior Court

30 Pa.Super. 169

McMahen v. White, Appellant

No. 44-1905

Superior Court of Pennsylvania

March 12, 1906

Argued October 4, 1905 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 2, Phila. Co.-1902 No. 343, on verdict for plaintiff in case of William H. McMahen v. Stacy H. White.

Trespass to recover damages for death of a horse. Before Wiltbank, J.

The facts are stated in the opinion of the Superior Court and the charge which was as follows:

The facts in the case have been gone over so carefully and fully by counsel for plaintiff and defendant, and they are in themselves so few, so far as they are controlling facts, that I need not state them again to you. The conceded facts are that these parties were driving along the Wissahickon road, and that there was a collision. The plaintiff's horse and the defendant's horse ran together, and you may reasonably infer that at least one of the parties was traveling at a rapid rate. Perhaps both were, but the result of the impact must necessitate the conclusion that at least one was, because the defendant has testified that the shaft of the plaintiff's carriage pierced his horse's breast to the extent of seventeen inches, and that the shaft of his own carriage pierced the plaintiff's horse's breast to the extent of seven inches. You may, therefore, I think, reasonably infer that the travel of these two parties was, so far as one and perhaps both of them may be considered, not slow travel. You are further to consider that it appears to be conceded that at the time of the accident the road was very dark. The electric lights can best be described by the park guard, who stated that along there, according to the regular method, that spot was pretty well lighted, but that there might be a time or times when there was a cessation in the light, or a falling of it so that it became dark. There seems to be no difficulty about that point. There is no difficulty about understanding that the plaintiff was driving his own horse northward on the proper side of the road. The defendant, however, was not driving his horse. He owned the horse, but he had permitted his guest to drive for him, and accordingly [in considering the proofs you are to consider what under the circumstances that guest was doing, and what she did in driving the horse at that time you may regard as substantially the act of the defendant himself]. He has said with candor that she asked if she might drive just after they left the house where they had dined, and he said she might, and she was driving at the time the accident occurred. It is further undisputed that people in both carriages were thrown out. The plaintiff himself was thrown out, his companion remaining behind, and the defendant and his companion were thrown out, so that we have a further indication that it was not easy driving on the part of both of these parties. One or both of them must have been driving somewhat more rapidly than the ordinary, usual, simple pace. However, I leave that to you. The resolution of all questions of fact is exclusively for you, and whilst I suggest these things as conclusions probably or reasonably to be looked for, yet you may reach quite different conclusions, and it is entirely within your province to do so.

Finding the plaintiff and defendant rightfully on the road, because each had a right to travel there, finding in the inception of the history of the transaction each on the right-hand side of the road, it is for you to consider whether the defendant was negligent in his driving to such an extent as to have produced the injury to the plaintiff's horse and wagon, an injury which, had he used proper care, would have been avoidable and probably avoided. If the defendant through his agent used the care which a reasonable man might be expected to use under the circumstances, he is not to be held responsible here. If you find, on the other hand, that his action through his agent was not such in respect of care as a reasonably prudent driver under the circumstances would have exercised, then you are to consider a further question, because even that will not conclude the case against the defendant. The further question is, whether the plaintiff himself was free from all contributory negligence. Was he driving along there in such a way as would be the course of a reasonably prudent driver under the circumstances? If he was not, it makes no difference how much to blame you may regard the defendant as exceeding the rule of care, your verdict should go for the defendant. If he was exercising proper care and the defendant was not, according to my statement of the measure of care to you, then you might find that the verdict should be for the plaintiff.

If you find a verdict for the plaintiff, the measure of damages would be the market value of the horse, of which you heard sufficient evidence to enable you to reach a conclusion, and the necessary outlay of the plaintiff in the premises incident to the result of the very accident itself -- outlay in the care of the horse. I do not recall any evidence as to damage to the wagon, although it is claimed in the narr.

Verdict and judgment for plaintiff for $ 674.13. Defendant appealed.

Errors assigned were that the charge was inadequate; portions of charge as above, quoting it; in refusing binding instructions for defendant.

Affirmed.

Alex. Simpson, Jr., with him Alfred J. Wilkinson, for appellant. -- The charge gave the jury no standard to determine what was and what was not negligence: Tietz v. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; McCord v. Whitacre, 8 Pa.Super. 277; Stuart v. Line, 11 Pa.Super. 345.

The trial judge erred in charging the jury that the driver of the carriage was defendant's agent, and, as a matter of law, he was chargeable generally for all her acts: Allen v. Willard, 57 Pa. 374; Reed v. Allegheny, 79 Pa. 300; Carr v. Easton, 142 Pa. 139; McCullough v. Shoneman, 105 Pa. 169; Dean v. R. R. Co., 129 Pa. 514; Carlisle v. Brisbane, 113 Pa. 544; Bunting v. Hogsett, 139 Pa. 363; Crescent Twp. v. Anderson, 114 Pa. 643; Kelton v. Fifer, 26 Pa.Super. 603; Cincinnati v. Stone, 5 Ohio, 38; Wood v. Cobb, 95 Mass. 58; Kimball v. Cushman, 103 Mass. 194; Millsaps v. Ry. Co., 69 Miss. 423 (13 So. 696); Norris v. Kohler, 41 N.Y. 42; Hill v. Morey, 26 Vt. 178; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316.

The point for binding instructions ought to have been affirmed: Connor v. Penna. R. R. Co., 24 Pa.Super. 241; Hershinger v. Penna. R. R. Co., 25 Pa.Super. 147; Kelton v. Fifer, 26 Pa.Super. 603; Welfare v. London, etc., Ry. Co., Law Rep. 4 Q. B. 693; Brown v. Piper, 91 U.S. 37.

J. A. Robbins, for appellee. -- The charge of the learned trial judge was adequate: Tietz v. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; McCord v. Whitacre, 8 Pa.Super. 277; Stuart v. Line, 11 Pa.Super. 345.

From his own testimony the acts of his guest while driving under the circumstances described are, as a matter of law, imputable to the defendant: Kimball v. Cushman, 103 Mass. 194; Hill v. Morey, 26 Vt. 178; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316; Norris v. Kohler, 41 N.Y. 42; Cincinnati v. Stone, 5 Ohio, 38; Wood v. Cobb, 95 Mass. 58; Millsaps v. Ry. Co., 69 Miss. 423 (13 So. 696); Bunting v. Hogsett, 139 Pa. 363; Township of Crescent v. Anderson, 114 Pa. 643; Kelton v. Fifer, 26 Pa.Super. 603; Hershinger v. Penna. R. R. Co., 25 Pa.Super. 147; Connor v. Penna. R. R. Co., 24 Pa.Super. 241.

Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.

OPINION

RICE, J.

The plaintiff was driving northward in his carriage drawn by one horse on the Wissahickon road, a public highway in Fairmount park, Philadelphia, and the defendant, with a friend who was driving by his permission, was riding in the opposite direction in a carriage drawn by one horse belonging to him. The time was about nine o'clock in an evening in July. At a point where, according to some of the testimony, there was a bend in the road, the two horses collided with such force, that the left shaft of each carriage penetrated deeply the breast of the horse hitched to the other carriage, and in consequence of the injuries both horses died a few weeks later. The evidence adduced by the plaintiff was to the effect, that he was driving at moderate speed, about four miles an hour, on the right-hand side of the road, so that there was ample room for two vehicles to pass, and that the collision would not have occurred if the defendant's horse, which was being driven at an extremely rapid pace -- described by one witness as " a runaway speed" and by another as " a dead run" -- had not been suddenly pulled over to the east side of the road, in order to pass another vehicle also being driven at a very rapid pace in the same direction as the defendant's. On the other hand, the defendant's testimony was, that his horse was being driven at moderate speed, not over six miles an hour, and was pulled over toward the middle of the road, not for the purpose of passing the vehicle ahead, but in order to go safely around the bend in the road, and that it was very dark at the time and place of the collision. He testified that as soon as he discovered the plaintiff's carriage -- " coming up terribly," as he described the speed -- he shouted in warning, and as he did so the collision occurred.

The first assignment of error raises a question as to the adequacy of the charge to the jury. The foregoing outline of the testimony shows that it was not complicated, and did not require an extended review and analysis by the court, either to bring it freshly to the recollection of the jury or to enable them to appreciate its true bearing. But it is urged that it is the...