Argued
October 31, 1901
Appeals, Nos. 82 and 83, by defendant, from judgment of C.P
No. 1, Allegheny Co., Dec. T., 1900, No. 500, in case of
Joseph L. Miller and Susan L. Miller, his Wife, v
Consolidated Traction Company. Affirmed.
Trespass
for personal injuries. Before COLLIER, J.
At the
trial it appeared that Susan L. Miller, plaintiff, was run
over by one of defendant's cars on December 8, 1898
while attempting to cross from the north side to the south
side of Frankstown avenue at Station street in Pittsburg. The
evidence as to the speed of the car and whether a signal was
given was conflicting. It was not disputed that the distance
from the north track to the curb of Frankstown avenue was
seven feet and six inches. A large covered wagon was standing
in such a position between the north track and the curb as to
obstruct the view of the north track in the direction from
which the car came which struck plaintiff. Mrs. Miller
described the accident as follows:
"I
started to cross the street. I stepped down off the curb and
as I stepped off the curb I saw a car coming towards
Wilkinsburg. I stopped until it left off its passengers and
went on. Then I went to start to go across the street, and I
looked towards town, and then I looked towards Wilkinsburg,
but I couldn't see for a wagon, so I listened and I
thought there was nothing coming, and I started for to cross
the street, and when I got within a step or so of the track,
why, the car came and I had no chance to turn or nothing, and
I just threw up my hands."
"Q.
Now, when you stepped down from the curbstone, or rather down
from the curb, how far from the curb did you first go before
you stopped? A. Only a step. Q. That would leave several feet
between where you stood and the track? A. Yes, sir. Q. Now,
were you standing there when the car to Wilkinsburg passed
you? A. Yes, sir. Q. And after that started, you say you then
moved forward? A. Yes, sir. Q. And did you stop again? A. No,
sir. As I went to cross, as I went on, I seen the car coming
right there, and I hadn't a chance to run or anything
else. I throwed my hands up that way (indicating). Q. How far
was that car from you when you first saw it? A. I
couldn't say that. Q. Was it right on you? A. It was
right on me, yes. It was that near to me that I hadn't a
chance to get out of its way. Q. As you walked forward, did
you look towards Wilkinsburg in your effort to see a car? A.
Yes, sir; I did. Q. And you say you couldn't see one? A.
No, sir; I couldn't see one. Q. Did you listen? A. I did
listen. Q. Did you hear the car approaching? A. No, I
didn't hear no car. I don't think I would have
attempted to cross if I had heard a car."
Kerr, a
witness for plaintiff, testified, as follows:
"Q.
The Wilkinsburg car was standing on the other side of the
street? A. On the far track. Q. And when it started, she then
stepped closer to the track? A. She took a step or two and
again stopped. Q. And she was standing here, facing
Wilkinsburg, when the car came along? A. No; she had just
took this step or two and stopped and looked and turned her
head towards Wilkinsburg to see -- from the way she acted, I
suppose she couldn't see, and just took another step as
the car came on. Q. So far as your idea goes, she never got
on to the track, and did not get in front of the car? A. She
didn't step right on the track, no. Q. Then, when she
went under the car, you say she went under the motor car? A.
Yes, sir. Q. And it was the back wheels of the motor car? A.
They passed over her. Q. The front wheels did not? A. The
front wheels of the motor car did not. Q. This was an
ordinary closed car? A. Yes, sir. Q. And according to the
best of your recollection, was it as far back as the middle
of the car that she put her hands up, and went under the car?
A. It was about the middle of the motor car."
Sullivan,
plaintiff's witness, said:
"Q.
The car hit her? A. Yes, sir; kind of pushed her and turned
her around, and the back step of the front car caught her and
throwed her under the trailer."
Engineering
evidence for the defendant tended to show that at the point
where the accident occurred a person could stand within two
feet of the rail, with the wagon ten feet away close to the
rail as it could be placed, and see 950 feet of the track.
The
court submitted the case to the jury.
Verdicts
for $12,000 and $5,000 in favor of Joseph L. Miller and Susan
L. Miller respectively. Joseph L. Miller remitted $2,000 and
judgments were entered for $10,000 and $5,000, respectively.
Defendant appealed.
Error
assigned was in refusing binding instructions for defendant.
The
judges who heard this case being equally divided in opinion,
the judgment is affirmed.
J. H
Beal, with him Knox & Reed, for appellant. -- Where a party
walks against a moving car or locomotive, or gets so close to
the track as to be struck by the side of the car or
locomotive, he is guilty of contributory negligence:
Hauser v. Central Railroad Co., 147 Pa. 440;
Walsh v. Hestonville, etc., Pass. Railway Co., 194
Pa. 570; ...
