Timler v. Philadelphia Rapid Transit Co.
| Decision Date | 19 March 1906 |
| Docket Number | 172 |
| Citation | 63 A. 824,214 Pa. 475 |
| Parties | Timler, Appellant, v. Philadelphia Rapid Transit Company |
| Court | Pennsylvania Supreme Court |
Argued January 22, 1906
Appeal, No. 172, Jan. T., 1905, by plaintiff, from judgment of C.P. No. 5, Phila. Co., June T., 1903, No. 4,463, on verdict for defendant in case of Herman Timler v Philadelphia Rapid Transit Company. Affirmed.
Trespass to recover damages for personal injuries. Before DAVIS, J.
The facts are stated in the opinion of the Supreme Court.
The court gave binding instructions for defendant. Plaintiff appealed.
Error assigned was in giving binding instructions for defendant.
Judgment affirmed.
Samuel E. Cavin, with him Frederick Beyer, for appellant. -- The learned judge erred in assuming that because between the two observations made by plaintiff it appeared that the car had traveled at a high rate of speed the plaintiff must necessarily take the risk that the car would continue such speed up to the crossing; the car at the time of the second observation being then 220 feet from the crossing, whilst the plaintiff's horse was but nine feet away from the track to be crossed: Hamilton v. Traction Co., 201 Pa. 351; Callahan v. Phila. Traction, 184 Pa. 425.
The learned judge erred in assuming that plaintiff did not look for the approaching car when he was about to cross the track, in face of the testimony that he looked when he was but nine feet away: Moser v. Traction Company, 205 Pa. 481.
The learned judge erred in giving binding instructions to the jury in favor of a verdict for defendant: Beach v. Pennsylvania R.R. Co., 212 Pa. 567.
Thomas Leaming, with him Russell Duane, for appellee. -- Plaintiff was guilty of contributory negligence in not looking for the car at the edge of the track: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Avenue Traction Co., 194 Pa. 75; Burke v. Union Traction Co., 198 Pa. 497; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Boring v. Union Traction Co., 211 Pa. 594; Brown v. Traction Co., 14 Pa.Super. 594.
Plaintiff was guilty of contributory negligence in attempting to cross the track after two observations had disclosed the car rapidly approaching and gaining speed: Mease v. United Traction Co., 208 Pa. 434; Smith v. Electric Traction Co., 187 Pa. 110; Greenwood v. P.W. & B.R.R. Co., 124 Pa. 572.
The decisions of the Supreme Court, in their chronological order, as to crossing collisions between wagons and street cars. are as follows: -- Thomas v. Citizens' Pass. Ry. Co., 132 Pa. 504; Carson v. Federal Street, etc., Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Traction Co., 150 Pa. 187; Winter v. Ry. Co., 153 Pa. 26; Gilmore v. Ry. Co., 153 Pa. 31; Downey v. Pittsburg, etc., Traction Co., 161 Pa. 131; Omslaer v. Traction Co., 168 Pa. 519; Callahan v. Traction Co., 184 Pa. 425; Smith v. Electric Traction Co., 187 Pa. 110; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Ave. Traction Co., 194 Pa. 75; Boehmer v. Traction Co., 194 Pa. 313; Bomscheuer v. Consolidated Traction Co., 198 Pa. 332; Burke v. Union Traction Co., 198 Pa. 497; Tyson v. Union Traction Co., 199 Pa. 264; Harman v. Penna. Traction Co., 200 Pa. 311; Hamilton v. Consolidated Traction Co., 201 Pa. 351; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; March v. Union Traction Co., 209 Pa. 46; Moser v. Union Traction Co., 205 Pa. 481; Mease v. United Traction Co., 208 Pa. 434.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
The undisputed evidence is that when appellant looked the second and last time the head of his horse was nine feet from the track, while he himself was seated on his wagon nearly twenty feet distant. When he last looked and saw the approaching car it was necessary, in order to cross in safety, that he should drive nine feet to the track, five feet across it, which added to the length of his horse and wagon, eighteen feet, made a total of thirty-two feet before he could pass the car in safety. Notwithstanding these facts, he disregarded his duty to look immediately before going upon the track, and was injured by the collision with the car. Under the settled rule of our cases he was guilty of contributory negligence, and there can be no recovery. This court has frequently said that when the driver of a team at the intersection of two city streets, fails to look immediately before going upon the track, he is guilty of contributory negligence: Ehrisman v. Passenger Railway Co., 150 Pa. 180; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Avenue Traction Co., 194 Pa. 75; Burke v. Union Traction Company, 198 Pa. 497; Pieper v. Union Traction Company, 202 Pa. 100; Keenan v. Union Traction Company, 202 Pa. 107; Moser v. Union Traction Company, 205 Pa. 481; Boring v. Union Traction Company, 211 Pa. 594.
The case at bar cannot be distinguished from the cases cited. Indeed, the facts in many of the cited cases more strongly favored the plaintiff than do those of the present case. The appellant looked twice and saw the car rapidly approaching. He first saw it a little more than 300 feet away. He drove on about ten feet and saw the car a little more than 200 feet distant. In other words, while he drove ten feet the car moved about 100 feet. At the time he last looked it was necessary for him to travel thirty-two feet to clear the tracks, while the car would have to move about 200 feet before reaching him. It is clear, therefore, that if he drove at the same rate of speed and the car continued to move at the same rate, a collision must result. Notwithstanding these facts he continued on without again looking for the car which he knew was rapidly approaching. If he had looked immediately before going upon the track, as the rule of our cases requires, he would have seen the car less than 100 feet away, and should have known that he could not cross in safety if he continued driving at the same rate of speed. The evidence shows that he took no precaution for his safety after he looked the second time. The rule of law which requires him to look immediately before going on the track is not complied with if when he looks and sees danger he makes no effort to avoid it. Even if it be conceded that the car was running at an unusual rate of speed, appellant was not thereby excused from the performance of duties imposed on him by law. If he had observed his duty to look immediately before going on the track, the question of defendant's negligence in running the car at an excessive rate of speed might have been properly submitted to the jury. He did not do so, and the case turns not on the defendant's negligence, but on the contributory negligence of plaintiff. Indeed, the greater the danger from the rapidly approaching car, the more imperative his duty to look immediately before going on the track. It was not only his duty to look at the proper place, but when he looked and saw danger which could be avoided by the exercise of reasonable care, it was his duty to avoid that danger. We have frequently said that it is as much the duty of the driver of a team to avoid a collision in these cases as it is of the motorman of a car. The learned court below gave binding instructions for defendant, and in this we see no error.
Judgment affirmed.
The learned trial judge held that the plaintiff was guilty of contributory negligence and on that ground directed a compulsory nonsuit. The plaintiff and another witness were called in his behalf. It was admitted, however, on the record that fourteen other witnesses would corroborate the evidence given by the two witnesses who testified.
The facts are not in dispute. About 8 o'clock on the evening of July 11, 1903, Timler, the plaintiff, drove a one horse bottling wagon east along the south side of Clearfield street, which runs almost east and west. This street opens into Kensington avenue on which the defendant company operates a double track electric car line. When Timler got to the house line on the west side of Kensington avenue he looked south and saw no car. He then drove on and, as was his custom, looked at the window in a barber shop on the opposite side of Kensington avenue and saw no reflection of an approaching car. When he got even with the curb on the west side of Kensington avenue he looked again and saw a car coming from the south at a distance of 333 feet. Timler then says he knew he had plenty of time to cross in safety. He drove on, and when his horse's head was over the west rail of the first track and nine feet from the second or north bound track he looked again and saw the car coming at a distance from him about 220 feet. He then struck his horse with the line and started to cross the north bound track, but before he had passed entirely over it the rear right wheel of his wagon was struck on its hub the tire was struck on the rear part of the wheel. The wagon was thrown to the left and Timler to the right side.
The car approached the crossing at a speed of at least twenty miles an hour, double its ordinary speed at that place. Its speed was accelerated as it approached the crossing and ran more than 100 feet after the collision before it was stopped.
I do not agree with the majority of the court that the facts which are undisputed and are stated above, are sufficient to convict the plaintiff of negligence as a matter of law. I fail to see wherein they disclose any negligence on the part of the plaintiff. He approached...
To continue reading
Request your trial