Schmidt v. MaGill

• Decision Date: 21 May 1888
• Docket Number: 116
• Citation: 120 Pa. 405,14 A. 383
• Parties: CHRISTIAN SCHMIDT v. MARY McGILL
• Court: Pennsylvania Supreme Court

14 A. 383

120 Pa. 405

CHRISTIAN SCHMIDT v. MARY McGILL

No. 116

Supreme Court of Pennsylvania

May 21, 1888

Argued January 16, 1888

ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

No. 116 July Term 1887, Sup. Ct.; court below, No. 106 September Term 1884, C.P. No. 1.

On September 11, 1884, an action in case for negligence was begun by Mrs. Mary McGill against Christian Schmidt, to recover damages for personal injuries.

At the trial on March 28, 1887, it was made to appear that on May 27, 1884, Mrs. McGill was crossing Eleventh street on Susquehanna avenue, when she was struck by the pole of a beer wagon driven up Eleventh street by John Foelker, an employee of the defendant. Susquehanna avenue runs east and west, and Eleventh street north and south. The team was passing from south to north; Mrs. McGill was walking from east to west on the north foot-way of Susquehanna avenue. She testified "I had been to the meat store at Ninth and Susquehanna avenue. It was Tuesday morning, May 27, 1884. I started to go home and was walking along Susquehanna avenue. I was coming to the corner of Eleventh street, and I knew that the cars came down Eleventh street. I looked about and saw that the road was clear. I turned my head around a little to see whether cars or anything was coming. In an instant I was knocked down. The pole struck me on the leg. I was picked up. Mr. Dougherty stood me up. My leg went under, and I said 'Oh, my leg is broke!' Dougherty hallooed to his barkeeper or somebody for a chair, and put me on it. I was then carried home. I laid down on the lounge down-stairs until the doctor came. He said he would have to get another doctor, my leg was broke. He came back about five o'clock with the other doctor to set my leg. My suffering commenced then. I had to put my leg in a sand-box. I had the box on nine weeks. Then I was put in a hammock for three days, but that didn't do well and I had to go back to bed and put the box on again another week. After that I got up and put my clothes on. Gradually I got on crutches."

On cross-examination, she said: "I was going home on the north side of Susquehanna avenue. When I approached Eleventh street, I did not look down Eleventh street. There is a vacant lot on the southeast corner of Eleventh and Susquehanna avenue. I could have seen down Eleventh street half way to Diamond street but I did not look. I had a sunbonnet on. It came down over my face and was tied pretty tight. . . . I passed Dougherty on his own corner. I did not see the wagon then. Did not see the wagon at all. Did not hear it coming. I looked ahead and saw the road clear before me and then I looked up for the car. I looked straight across Eleventh street. Did not look up or down Eleventh street. I did not hear the wagon. If I had looked down Eleventh street, certainly I could have seen the wagon coming. Can't say whether I saw a car coming down Susquehanna avenue or not. Did not notice the car at all. Don't know exactly how far I had got across Eleventh street when I was struck. It all came so suddenly when I was struck. I told you before I don't know exactly where I was when I was picked up on the track. My foot kind of slipped out when I was struck. Can't say how I fell. I felt the pole strike me. As far as I can say it was the pole that struck me. I felt it. Something struck me. I could not say for sure that I was struck. Can't say whether I fell on a cobble-stone. I know the pole struck me. I did not stumble and fall as I know of."

John F. Dougherty testified: "Mrs. McGill was just crossing Eleventh street on north side of Susquehanna avenue. Saw wagon come at pretty good gait so as to strike her. I hallooed and threw up my left hand. He paid no attention. Came right on. Wagon struck her and knocked her about twelve feet or so. I ran to pick her up. She said, 'Oh, my leg is broke!' My wife or niece came out and brought a chair and I put Mrs. McGill on it. She said she was Mrs. McGill. I then took her home. Wagon came at a right fast trot for a beer wagon. Driver did not slacken speed when he came to crossing." Other eye-witnesses described the occurrence, and it was shown that the injuries received caused great pain and suffering and resulted in a permanent shortening of the plaintiff's right leg about one and three-fourths inches. At this time the street cars ran down Eleventh street.

On behalf of defendant, Fred. Foelker testified: "I had two horses. Was loaded about half full. I was going up Eleventh street towards Susquehanna avenue. I was driving easy. A car came around Susquehanna avenue and down Eleventh street. I turned out for it at the turnout, and then went on straight. I was into Susquehanna avenue before Mrs. McGill crossed the curb-stone. I saw her coming along Susquehanna avenue. I got to Susquehanna avenue before she got to curbstone. She saw the horses when they were about two feet away from her, jumped back and fell towards the right. She fell on the crossing-stone. The wagon was in the tracks. I turned out of the track to the west side of Eleventh street. She had a basket which fell out of her hand when she fell."

The court, BIDDLE, J., charged the jury and answered the defendant's point as follows:

This is an action brought by Mrs. McGill against Christian Schmidt to recover damages for an injury inflicted by his driver. It is not denied that Foelker was Schmidt's driver at the time of the accident, so that if he was guilty of negligence, the defendant is the proper person to sue.

This accident occurred on a public highway, where both parties had a right to be, but both parties must exercise that right in an ordinary and reasonable manner. It is impossible to define their exact duties, and the ordinary and reasonable care must depend upon the circumstances of each particular case. There is no obligation on the part of persons driving along the public streets to haul up their horses and stop at every crossing. Nor must people look in every possible direction for vehicles approaching and cipher out how long it will take them to arrive at the crossing. Each must exercise reasonable and ordinary care. Of course, more caution must be used at crossings than at other parts of the highway, for that is where the stones are placed to cross. The obligation is mutual. Each must use reasonable and ordinary care.

This being an action for negligence, the plaintiff must establish that fact. If both parties are at fault, the verdict must be for the defendant. You should be satisfied that there was negligence on the part of one party alone.

The case has been gone over thoroughly by both counsel, and you have had the plans shown you. Mr. Dougherty and Miss Nagle both testify that the driver was on the other side of Susquehanna avenue when they first saw him, and he says so himself in his testimony. Now you must consider whether it was negligence for Mrs. McGill to attempt to cross then, and whether he should have stopped.

If the plaintiff establishes her case, you will consider the question of damages. The damages will be compensatory. I don't think there is any question of vindictive damages in this case. In considering the question of damages, you will take into account the direct expenses incurred, the loss of time, bodily suffering, and any incurable injury. These are the elements of the damages.

Of course, the mere fact of an accident is not proof of negligence. Your own common sense will tell you that.

Counsel for the defendant requests the court to charge the jury as follows: --

1. If the jury believe that at the time of the alleged accident the defendant's driver was traveling in an ordinary manner, the defendant is not liable for an injury resulting from the use of the public street.

Answer: Refused:

The jury returned a verdict in favor of the plaintiff for $3,000. Judgment being entered, the defendant took this writ assigning as error:

1. The refusal of defendant's point.

2. That the charge of the court was inadequate in this, that it did not refer to the facts proved at the trial, and did not direct the attention of the jury to the contributory negligence of the defendant in error.

The judgment is affirmed.

Mr. Joseph L. Tull, for the plaintiff in error:

1. The refusal by the court to instruct the jury as requested by the defendant, amounted to a denial of the right of the defendant to the use of the highway, and to make him responsible for an injury while traveling in an ordinary manner. The driver was passing on that part of the street set apart for wagons, and where he had a right to be. He saw the plaintiff on the pavement approaching the crossing. He had a right to presume she saw him, and that his direction was across her path. She was still on the pavement when he got into Susquehanna avenue. Upon the plaintiff the law imposed the duty to look and notice whether any vehicle was coming along the highway, which had a right to be there, and if, when she reached the curb, she found she had not time enough to cross over in safety, it was negligence on her part to try to cross in front of the horses. Had she looked, she could have seen what must have been right before her eyes; if she did not look, she was negligent, and if she did, she was negligent in attempting to cross in front of the horses which she could plainly see: Sykes v. Packer, 99 Pa. 465.

2. The rate of speed had nothing to do with the accident. When the plaintiff attempted to cross, the horses were in the middle of the avenue, and had the driver been going at three miles an hour, the accident would still have happened; the plaintiff had only to make five steps to place herself in front of the horses, if it was true she was between the tracks when she was struck. "The rate of speed would...