Phillips v. People's Pass. Ry. Co.

• Decision Date: 13 March 1899
• Docket Number: 126
• Citation: 42 A. 686,190 Pa. 222
• Parties: Augustus W. Phillips v. People's Passenger Railway Company, Appellant
• Court: Pennsylvania Supreme Court

42 A. 686

190 Pa. 222

Augustus W. Phillips v. People's Passenger Railway Company, Appellant

No. 126

Supreme Court of Pennsylvania

March 13, 1899

Argued January 4, 1899

Appeal, No. 126, Jan. Term, 1898, by defendant, from judgment of C.P. No. 4, Phila. County, Dec. Term, 1895, No. 816, on verdict for plaintiff. Reversed.

Trespass for personal injuries. Before WILLSON, J.

At the trial it appeared that on Sunday morning, July 28, 1895 plaintiff, while riding a horse, was injured in the manner described in the opinion of the Supreme Court.

Defendant's point and the answer thereto were as follows:

Upon all the evidence in this case the verdict must be for the defendant. Answer: Refused.

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

Error assigned was above instruction, quoting it.

The second assignment of error is sustained, and the judgment is reversed.

Hampton L. Carson, with him Dimner Beeber and J. Levering Jones, for appellant. -- To render the defendant liable in this case it must appear by the evidence that the negligence, if any, of the defendant, must have been the sole efficient cause of the injury, and if the jury find from the evidence that this accident to the plaintiff was caused by his uncontrollable and runaway horse, or from this cause concurring with the defendant's negligence, then the verdict must be for the defendant: Schaeffer v. Jackson Twp. 150 Pa. 145; Chartiers Twp. v. Phillips, 122 Pa. 601; Willis v. Armstrong County, 183 Pa. 184; Gillmore v Federal St., etc., Pass. Ry. Co., 153 Pa. 31; Schnur v. Citizens' Traction Co., 153 Pa. 29.

One is not chargeable with negligence if there is not want of time to form a judgment or to act in the most judicious manner: Hestonville, etc., R.R. Co. v. Kelley, 102 Pa. 115; Brown v. French, 104 Pa. 604; Sandford v. Hestonville, etc., R.R. Co., 136 Pa. 84; Sekerak v. Jutte, 153 Pa. 117; Floyd v. Phila. & Reading R.R. Co., 162 Pa. 29; Donahue v. Kelly, 181 Pa. 93; McManigal v. South Side Pass. Ry. Co., 181 Pa. 358.

Milton C. Work, with him Alex. M. DeHaven, for appellee. -- Plaintiff was not guilty of contributory negligence: Gillmore v. Federal St., etc., Pass. Ry. Co., 153 Pa. 31; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519.

The motorman of the car of the defendant was guilty of negligence: Yoders v. Amwell Twp., 172 Pa. 447; Schnur v. Citizens' Traction Co., 153 Pa. 29; Citizens' Pass. Ry. Co. v. Foxley, 107 Pa. 537; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Aiken v. Penna. R. Co., 130 Pa. 380.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE FELL:

It appears from the testimony that the plaintiff's horse became unmanageable at Woodland avenue and Walnut street, and ran with him down Walnut to the crossing of Fourth street, where the accident occurred. During all this time, although the plaintiff kept his seat, the horse was more or less beyond his control and at the time of the accident it appears to have been a runaway going at a high rate of speed. When from sixty to eighty feet from the crossing of Fourth street, and on the south side of Walnut street between the curb and the car track, the plaintiff saw a car which was going south on Fourth street and about to cross Walnut. As soon as he saw the motorman, the plaintiff called to him to stop the car. The motorman, however, either did not hear, or if he heard elected to do otherwise, for the car proceeded to cross the street, and the horse ran into it, causing the plaintiff's injury.

We are unable to see in this testimony any evidence of negligence on the part of the motorman. There is no evidence that he heard the plaintiff call to him or that he was otherwise made aware of the approach of the runaway horse. It was his duty undoubtedly, to look for approaching cars and other vehicles which might collide with his car; but anything moving with the speed of a runaway horse was not to be apprehended, and he might very well have assured himself that none of the ordinary dangers of street crossings threatened him without having either heard or seen the approach of the plaintiff. He had not brought his car to a full stop at the crossing, nor was there, as far as the testimony shows, any reason why he should. A motorman certainly cannot be required to stop at every crossing and look for such extraordinary perils as the one in this case, nor can h...