Vincent v. Lehigh Valley Transit Co.

Decision Date02 March 1908
Docket Number341
PartiesVincent v. Lehigh Valley Transit Company, Appellant
CourtPennsylvania Supreme Court

Argued February 4, 1908

Appeal, No. 341, Jan. T., 1907, by defendant, from judgment of C.P. Montgomery Co., Dec. T., 1906, No. 85, on verdict for plaintiff in case of Julia Frances Vincent v. Lehigh Valley Transit Company. Affirmed.

Trespass to recover damages for death of plaintiff's husband. Before WEAND, J.

The circumstances of the accident are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $6,650. Defendant appealed.

Error assigned amongst others was in refusing binding instructions for defendant.

The judgment is affirmed.

N. H Larzelere, with him Franklin L. Wright, for appellant. -- The motorman was not negligent as regards the speed of the car as he was on a country road, and the lane was a private one not frequently used: Harman v. Traction Co., 200 Pa. 311; Houston Bros. Co. v. Traction Co., 28 Pa.Super. 374.

If the decisions governing right-angled crossings apply, the case should have ended fatally to appellee: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519; Burke v. Union Traction Co., 198 Pa. 497; Tyson v. Union Traction Co., 199 Pa. 264; Pieper v. Union Traction Co., 202 Pa. 100; Mease v. United Traction Co., 208 Pa. 434; March v. Traction Co., 209 Pa. 46; Timler v. Phila. Rapid Transit Co., 214 Pa. 475.

It was the duty of the deceased to look: Griffith v. West Chester St. Ry. Co., 214 Pa. 293; Burke v. Traction Co., 198 Pa. 497; Mease v. United Traction Co., 208 Pa. 434.

There can be no presumption of a fact which is negatived by all the evidence in the case: Goodman v. Sanger, 85 Pa. 37; Kinter v. Penna. R.R. Co., 204 Pa. 497; Hanna v. Phila. & Reading Ry. Co., 213 Pa. 157; Coppuck v. R.R. Co., 191 Pa. 172; Gangawer v. R.R. Co., 168 Pa. 265.

Montgomery Evans, with him John M. Dettra and Henry M. Brownback, for appellees.

Before FELL, BROWN, MESTREZAT, POTTER and STEWART, JJ.

OPINION

MR. JUSTICE FELL:

This action was to recover damages for the death of the plaintiff's husband who was killed in a collision between a car of the defendant company and a wagon in which he was riding. The track of the electric railway was laid at the side of the road nearest his dwelling house and within eight or ten feet of the fence of the front yard. A lane eighty feet in length extended from the dwelling to the road, into which it opened at right angles. At the end of the lane, south, in the direction from which the car came, there was a descending grade of the road for 300 feet to the foot of a hill 1,200 feet long with an elevation of twenty-nine feet. Between the lane and the foot of the hill the track was deflected slightly towards the road fence. At the end of the lane the view south was obstructed by trees and bushes then in leaf, but to what extent was disputed at the trial. The deceased was riding out the lane in a large covered wagon, sitting in front with his feet out on the foot board. His horse had crossed the track and the wagon was struck at, or immediately behind, the front wheels.

None of the plaintiff's witnesses saw the accident. Her case rested on the presumption that her husband had exercised due care before driving on the track, and upon proof that the car was running at an unusual and very rapid speed and that no signal of its approach was given. The car was scheduled to run at this place at the rate of twenty-five or thirty miles an hour. Her witnesses testified that the car was behind time and was running faster than usual; and one of them, who claimed to be able to judge of the subject, fixed the speed at fifty miles an hour. No signal was given near the lane until the horse was on the track and the car was 100 or 150 feet from it. Whether a signal had been given at a public crossing, 1,500 feet south, was disputed. But the testimony as to the absence of any signal was more than merely negative. One of the witnesses, whose house was between the lane and the public crossing, was watching for the car and heard it...

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