Thatcher v. Central Traction Co.

• Decision Date: 07 January 1895
• Docket Number: 305
• Citation: 166 Pa. 66,30 A. 1048
• Parties: Allen S. Thatcher v. Central Traction Co., Appellant
• Court: Pennsylvania Supreme Court

30 A. 1048

166 Pa. 66

Allen S. Thatcher v. Central Traction Co., Appellant

No. 305

Supreme Court of Pennsylvania

January 7, 1895

Argued November 9, 1894

Appeal, No. 305, Oct. T., 1894, by defendant, from judgment of C.P. No. 2, Allegheny Co., July T., 1893, No. 277, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before MAGEE, J.

The facts appear by the opinion of the Supreme Court.

Defendant's points were among others as follows:

"5. Under all the evidence in this case, if the jury believe that the direct cause of the accident was the fact that the wagon coming down the hill turned to the left just as Thatcher turned to the right, this was negligence on the part of the driver of the wagon coming down and is not to be attributed to the defendant company, and the verdict must be for defendant." Refused. [1]

6. Request for binding instruction. Refused. [2]

Verdict and judgment for plaintiff for $6,000.

Errors assigned were (1-2) instructions, quoting them.

A careful examination of the whole evidence satisfies us there was no error committed in leaving the question of negligence to the jury. The assignments of error are overruled and the judgment affirmed.

Thomas Patterson, E. W. Smith with him, for appellant, cited Brownfield v. Hughes, 128 Pa. 194; R.R. v Kelley, 102 Pa. 115; Traction Co. v. Bernheimer, 125 Pa. 619; Ehrisman v. Ry., 150 Pa. 180; Gilmore v. Ry., 153 Pa. 31; Robb v. Boro., 137 Pa. 42; Dean v. R.R., 129 Pa. 524.

T. T. Donehoo, L. K. Porter, W. A. Boothe with him, for appellee, cited: Gilmore v. Ry., 153 Pa. 31; Ehrisman v. Ry., 150 Pa. 180; Gibbons v. Ry., 155 Pa. 280; Kestner v. Traction Co., 158 Pa. 422; Lott v. R.R., 159 Pa. 471; Kraut v. Ry., 160 Pa. 327; Burrell Twp. v. Uncapher, 117 Pa. 353.

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

OPINION

MR. JUSTICE DEAN:

On the 12th of February, 1891, about 3 o'clock in the afternoon, the plaintiff, while driving with a companion in a light sewing machine wagon on Wylie avenue, Pittsburg, was run into by a cable car and very seriously injured. Wylie avenue has a very steep grade for about 600 feet from the foot of Minersville hill to the top. Fulton is a cross street at foot of the hill, and Arthur a cross street at the summit level. Between these are three other cross streets, Vine, Tannehill and Crawford, about 150 feet apart. Wylie avenue is about thirty to forty feet wide, being seven or eight feet narrower above Fulton street than below; above Vine it curves toward Arthur. The defendant occupies, with double tracks, the middle of the avenue, and operates its railway by cable. Looking up the avenue from Fulton, the ascending cars take the right hand track and the descending cars the left hand one. Thatcher and his companion, John Crusan, the latter having the lines, drove on Wylie avenue and up across Fulton street in the direction of Crawford, the next cross street, keeping on the right hand car track, when, hearing a car behind them, and seeing wagons standing on the space between the rails and curb on the street to the right, they turned off on the left hand track for the car to pass; it passed them between Crawford and Tannehill, when they attempted to get back on the right hand track, at a point near Tannehill, but before they were entirely clear of the track, a car coming down struck the wagon, throwing both out, and Thatcher, falling under the car, had his left arm crushed, so that it is permanently useless. He brought suit for damages against defendant, averring negligence in running the car on a much traveled street at a high rate of speed, and in giving no notice of its approach to vehicles driven on the rails, so that they might avoid a collision. The evidence as to the circumstances tending to show negligence or absence of it, was conflicting; it was submitted to the jury to find the fact by the learned judge of the court below in a very full charge. Of the six written points presented by counsel for defendant, he peremptorily affirmed four; the two negatived practically requested him to direct a verdict for defendant. There was a verdict and judgment for plaintiff in the sum of $6,000.

On appeal, error is alleged in negativing defendant's fifth and sixth points. The first of these asked the court to instruct the jury that if the direct cause of the collision was owing to the fact that a wagon coming down the avenue turned to the left just as plaintiff turned to the right and thus prevented him clearing the track and avoiding the collision, it was the negligence of the driver of the wagon which was the cause of the injury, and the company is not answerable.

As the plaintiff himself testified, "We attempted to pull back and in getting back on the other track, there was a wagon turned in front of us from the left hand track, and cut our way off from getting back, and the car that was coming down was coming at such a rate of speed that we couldn't get out of the way and it ran into us," an affirmance of this point would have been, in substance, an instruction that plaintiff could not recover. The assignment is without merit as the driver coming down on the, to him, right hand track, suddenly made an effort to escape from the rapidly approaching car...