Rusterholtz v. New York, Chicago & St. Louis Railroad Co.

• Decision Date: 08 May 1899
• Docket Number: 359
• Citation: 191 Pa. 390,43 A. 208
• Parties: Amos J. Rusterholtz v. The New York, Chicago and St. Louis Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

43 A. 208

191 Pa. 390

Amos J. Rusterholtz v. The New York, Chicago and St. Louis Railroad Company, Appellant

No. 359

Supreme Court of Pennsylvania

May 8, 1899

Argued April 25, 1899

Appeal, No. 359, Jan. T., 1898, by defendant, from judgment of C.P. Erie Co., May T., 1895, No. 226, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before WALLING, P.J.

The facts appear by the opinion of the Supreme Court.

At the trial, George Miller, a witness for plaintiff, testified:

"Q. You say you were through there the morning after he was hurt? A. Yes, sir. Q. What was the condition of the cars, as to being in the street or not, at that time? A. I should judge they were in the street, as far as within eight feet of each side of the wheel track. Q. About what distance were the cars apart on the switch? A. I should judge they were about eighteen feet on the track. Q. Which car was nearest the traveled track? A. That I would not say. Q. What trouble, if any, did you have in getting through there?"

Defendant objected to the question as incompetent and irrelevant.

The Court: It is competent for the plaintiff to show that other horses, which were ordinarily safe in the roadway, were frightened at these cars standing there as alleged, in this street, and if it is proposed to show that Mr. Miller's horses were such horses and were frightened by the cars, and that the cars were then standing in the same position as they were at the time of the alleged accident to Mr. Rusterholtz the evidence would be competent.

Mr Torry, of counsel for plaintiff: That is what we intend to prove.

The Court: To that effect the evidence is admitted, the objection is overruled and an exception is sealed for the defendant.

"A. When I was within about twenty-five or thirty feet my horses refused to go through. Q. How did you get through? A. I think I used the whip in order to get them through. Q. At what did they frighten, why didn't they go through? A. Because they were afraid of the obstructions, I suppose. Q. At what did they frighten? A. I think it was at the car." [1]

Defendant's points and the answers thereto among others were as follows:

1. If the jury find from the evidence that the horse of the plaintiff was frightened at defendant's car standing on the north side of Eighteenth street, and shied and plunged to the south as plaintiff rode west over the car works switch and that when he returned he stood in Eighteenth street within fifteen feet, or thereabouts, of the west side of the said car by the side of his horse, it was his duty to have led said horse past said car at a distance from said car of more than two or three feet, or to have taken some safe road to his home, and having failed to do this he is not entitled to recover, and your verdict should be in favor of the defendant. Answer: There are several elements embodied in this point, some of which involve questions of fact which are for the jury to determine. The point as a whole cannot be affirmed. For instance, it assumes that there was another safe road within plaintiff's knowledge, which is a question for the jury; as is also the question whether plaintiff should have led or ridden his horse past the cars. [3]

2. If the jury find from the evidence that the plaintiff, A. J. Rusterholtz, rode his horse westwardly along Eighteenth street the evening of the alleged accident, that in passing the cars of defendant company standing partly on the north side of said street his horse became frightened at said car, so that he shied and jumped to the south, that he, the said plaintiff, was acquainted with Cranberry street from Eighteenth street to Sixteenth street, and with Sixteenth street from Cranberry street to Raspberry street, and with Raspberry street from Sixteenth to Eighteenth streets on which he lived and did business, that he had been in the habit of using said streets prior to the time of the alleged accident, then it was the duty of the said Rusterholtz, to have gone from Seventeenth street, on which Murphy, the man he had gone to see, lived, northwardly along Cranberry street to Sixteenth street and thence by Raspberry street to Eighteenth street, where he lived, and having failed to do this he was guilty of contributory negligence, and therefore cannot recover, and your verdict must be in favor of the defendant. Answer: Affirmed, provided the jury find that the streets named above aside from Eighteenth street, or any of them over which plaintiff might have reached his home, without passing by the cars in question, were safer than Eighteenth street; and also find that plaintiff had knowledge of such fact. [4]

4. If the jury find from the evidence that the natural and probable consequence of the location and situation of defendant company's cars was to frighten horses passing between said cars, and that plaintiff knew the location and situation of said cars, he was guilty of contributory negligence in riding his horse between them, and your verdict must be in favor of the defendant. Answer: Refused. Whether or not plaintiff was guilty of contributory negligence under all the circumstances of this case is a question for the jury. [5]

5. Under all of the evidence in the case the plaintiff is not entitled to recover, and your verdict should be in favor of the defendant. Answer: Refused. [6]

8. If the jury find from the evidence that the plaintiff's horse was frightened at the car or cars of defendant company on either side of the traveled roadway over defendant company's track in Eighteenth street, when plaintiff passed westwardly along Eighteenth street, so that said horse "shied and plunged to the south," and that within a few minutes thereafter, upon passing between said cars at the same place, going eastwardly, the plaintiff was riding the same horse, and the horse became frightened a second time at said cars, and threw said plaintiff against one of the cars or on the ground, and thereby said plaintiff was injured, he cannot recover, for the reason that he was guilty of contributory negligence, and your verdict should be in favor of the defendant. Answer: If the jury find from all the evidence that the horse exhibited such fright when plaintiff rode past the cars going west on that evening as to have led an ordinarily prudent man to the conclusion that it would be unsafe to attempt to ride said horse back along Eighteenth street between said cars, then plaintiff was guilty of contributory negligence, and your verdict should be in favor of the defendant. [7]

9. If the jury find from the evidence that Eighteenth street, between Raspberry and Cranberry streets, in the city of Erie, was not opened and made a public street by the city of Erie to the width of fifty feet, but that a traveled way extended from Raspberry street to Cranberry street, over which the track of defendant company was laid, and that the cars of defendant company did not stand upon a part of said traveled way, then and in that case the defendant is not responsible for the damage complained of by the plaintiff. Answer: This point is declined, in the language in which it is drawn. A street may become a public street without having been formally opened and made a public street by express municipal action. You will remember what has been said to you upon this question in the general charge. [8]

10. If the jury find from the evidence that Rusterholtz was told by the former owners of the horse that he rode at the time of the alleged accident that it was dangerous for any one to attempt to ride said horse, and notwithstanding this notice he did ride said horse, and in going westwardly he passed defendant company's cars and said horse became so frightened that he shied and plunged, then it was the duty of said plaintiff to have returned by some other road to his place of business than by the road leading past defendant company's cars. And in case the jury further find from the evidence, that Cranberry street was a safe street to travel northwardly to Sixteenth street, and along Sixteenth street to Raspberry street, and thence to his place of business in Eighteenth street, and also that Cranberry street south from Eighteenth street, and Twentieth, or Twenty-first, or Twenty-second, or Brown's avenue, and Raspberry street, and Cascade street, and Eighteenth street, and thence to his home, was a safe and good road for him to travel, then and in that case the plaintiff cannot recover, and your verdict should be in favor of the defendant. Answer: Affirmed, provided the jury find that plaintiff knew of the safe condition of such other streets or any of them by which he might have returned safely to his home without traveling Eighteenth street by the cars in question. [9]

11. If the jury find from the evidence that the plaintiff, Rusterholtz, passed westwardly along Eighteenth street, between the cars of the defendant company, on horseback, within half an hour or thereabouts of the time of the accident, and knew of the location and situation of the cars of the defendant company, and then with a full knowledge of the situation and location of the same, returned eastwardly between said cars, riding horseback, upon the same horse, when the plaintiff could have avoided going between said cars by returning upon Sixteenth, Twentieth, Twenty-first, Twenty-second or Twenty-third streets, or Brown's avenue, the plaintiff was guilty of contributory negligence, and cannot recover. Answer: Affirmed, if the jury find that such streets, or any of them, by which plaintiff might have reached his home without traveling Eighteenth street past the car in question, were in safe condition, and also that plaintiff had knowledge of such condition. [10]

13. It appearing from the evidence of the plaintiff that Sixteenth,...