Minnich v. Wright
| Decision Date | 26 February 1906 |
| Docket Number | 322 |
| Citation | 63 A. 428,214 Pa. 201 |
| Parties | Minnich, Appellant, v. Wright |
| Court | Pennsylvania Supreme Court |
Argued January 29, 1906
Appeal, No. 322, Jan. T., 1905, by plaintiff, from judgment of C.P. Lehigh Co., Sept. T., 1904, No. 107, on verdict for defendant in case of Emma P. Minnich v. Robert E. Wright Charles M. Bates and George W. Norris, Receivers of the Lehigh Valley Traction Company. Reversed.
Trespass to recover damages for death of plaintiff's husband. Before HEYDT, P.J., specially presiding.
The facts are stated in the opinion of the Supreme Court.
The court directed a verdict for defendant.
Verdict and judgment for defendant. Plaintiff appealed.
Error assigned was in entering judgment for defendant.
The judgment of the court below is reversed and a venire facias de novo is awarded.
Preston K. Erdman and Thos. F. Diefenderfer, for appellant. -- It is only in clear cases that the court can say that a person has gone on in the face of obvious danger or failed to observe it when he should have done so: Cromley v. R.R. Co., 208 Pa. 445; McFarland v. Traction Co., 204 Pa. 423; Fenner v. Traction Co., 202 Pa. 365.
Arthur G. Dewalt, for appellees. -- We respectfully submit that under the facts and the law as given in the following cases the learned judge below was correct in his ruling: Rees v. Walton, 49 P.L.J. 200; Rowland v. Wanamaker, 193 Pa. 598; Taylor v. Traction Co., 20 Pa. C.C Rep. 238; Trout v. Ry. Co., 13 Pa.Super. 17; Smith v. Traction Co., 187 Pa. 110; Burke v. Traction Co., 198 Pa. 497; Thatcher v. Traction Co., 166 Pa. 66; Tyson v. Traction Co., 199 Pa. 264; Keenan v. Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Lyons v. Traction Co., 209 Pa. 72; Phillips v. Ry. Co., 190 Pa. 222; Ahern v. Melvin, 21 Pa.Super. 462.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.
We think the learned judge of the court below was in error in directing a verdict for the defendants, the appellees, on the ground that the death of Valentine Minnich was caused by his own negligence. The question was one of fact, and not so clear, under the evidence produced, that the court was justified in determining it as a matter of law.
We quite agree with the learned judge that if Minnich "looked and saw the car and drove into it deliberately, then he was guilty of contributory negligence; and that if he did not look where he was going, and was driving on this track, then he was guilty of such contributory negligence that he cannot recover." But we do not agree with the learned judge's other conclusion in this connection that the evidence was so clear and convincing that the court could as a matter of law hold that "if he had looked he could have seen this car coming." To convict Minnich of negligence it must appear that he was not exercising care in driving north on the car track, that if he had looked ahead of him he could have seen the approaching car in time to turn from the track and avoid the collision.
At the time of the accident a heavy snow had fallen, and the appellees had used their snowplow in clearing their track, throwing the snow to either side of it. It is not negligence in itself for a driver of a vehicle to use a car track, and especially was that true in view of the physical conditions existing at the place where Minnich met his death. Observing the rule of the road as recognized in this country, he was driving north on the east track of the two parallel tracks of the defendants' electric railway line. It was his duty to watch for an approaching car, and if he saw one on the track on which he was driving, he was required to leave the track and permit it to pass. The right of an electric railway company to use its tracks, although laid on a public highway, is superior to that of a pedestrian or an individual driving a team. If, therefore, as alleged by the appellees, the deceased saw, or could by the exercise of proper care have seen, their car, he should have turned from the track, or if that was not practicable by reason of existing conditions, he should have warned the motorman of the fact. If the deceased failed in this duty he was negligent. But if he had exercised the care required of him under the circumstances, could he have seen that the car with which he collided was approaching on the track on which he was traveling in time to avoid the collision? The answer to that question determines the character of the deceased's conduct on the occasion, whether it was negligent or not. And, as we have said, the evidence did not warrant the court in determining it as a matter of law.
The place of the accident was at the middle of a curve in the highway, and the character of the curve is indicated to some extent by the fact that the motorman says he threw...
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Minnich v. Wright
... 63 A. 428214 Pa. 201 MINNICH v. WRIGHT et al. Supreme Court of Pennsylvania. Feb. 26, 1906. Appeal from Court of Common Pleas, Lehigh County. Action by Emma P. Minnich against Robert E. Wright and others, receivers of the Lehigh Valley Traction Company. Judgment for defendants, and plainti......