Wagner v. Lehigh Traction Co.

• Decision Date: 15 May 1905
• Docket Number: 216
• Citation: Wagner v. Lehigh Traction Co., 212 Pa. 132, 61 A. 814 (Pa. 1905)
• Parties: Wagner v. Lehigh Traction Company, Appellant
• Court: Pennsylvania Supreme Court

61 A. 814

212 Pa. 132

Wagner v. Lehigh Traction Company, Appellant

No. 216

Supreme Court of Pennsylvania

May 15, 1905

Argued April 11, 1905

Appeal, No. 216, Jan. T., 1904, by defendant, from judgment of C.P. Luzerne Co., Oct. T., 1903, No. 211, on verdict for plaintiff in case of Elmer E. Wagner and Nellie Wagner v Lehigh Traction Company. Reversed.

Trespass to recover damages for personal injuries. Before LYNCH, P.J.

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

Verdict and judgment for plaintiff Elmer E. Wagner for $2,000 and for Nellie Wagner $4,000. Defendant appealed.

Errors assigned were various instructions, particularly in refusing binding instructions for defendant.

Judgment reversed and a venire facias de novo awarded.

Paul Bedford and John T. Lenahan, for appellant. -- For the condition of the bridge to which the accident was due the township and not the defendant was responsible: McLaughlin v. Corry, 77 Pa. 109.

Defendant's car was not negligently run: Dunklee v. City Pass. Ry. Co., 209 Pa. 125.

James L. Lenahan, with him James P. Costello, for appellees. -- Where a person, without fault on his part, is placed in a position of danger or embarrassment through the negligence of another, he will not be held guilty of contributory negligence for failure to use all possible means for his safety; if he act in good faith, and his conduct, under all the circumstances, is that of a man of ordinary prudence, he is not chargeable with negligence, and whether he did so act is a question for the jury: Johnson v. West Chester, etc., R.R. Co., 70 Pa. 357; Penna. R.R. Co. v. Warner, 89 Pa. 59; Vallo v. Express Co., 147 Pa. 404; Baker v. North East Borough, 151 Pa. 234; Malone v. Pittsburg, etc., R.R. Co., 152 Pa. 390; Sprowls v. Morris Township, 179 Pa. 219; Foote v. American Product Co., 195 Pa. 190; Stover v. Penna. R.R. Co., 195 Pa. 616.

Before MITCHELL, C.J., FELL, MESTREZAT, POTTER and ELKIN, JJ.

OPINION

MR. JUSTICE ELKIN:

The plaintiffs in their statement of claim charged the defendant company with negligence in two respects; first, in running the electric car, which collided with the wagon and caused the accident, in a negligent, careless and reckless manner; second, in negligently, carelessly and defectively maintaining its tracks on, over and across the bridge where the accident occurred, so that there was a space between the traveled roadway of the bridge and one of the rails of the track sufficiently wide to permit the wheel of the wagon on which appellees were riding to drop or slip in and become wedged there. After a careful consideration of all the testimony offered in the case, we are of opinion that appellees failed to establish the averment that the electric car complained of was operated in a negligent, careless or reckless manner. It was a dark night. The accident occurred on a bridge, part of the public highway, over which the tracks of the defendant company were laid and operated. It had a right to use its tracks on the highway and over this bridge. The plaintiff also had a right on the bridge, being part of the highway. Neither had a greater right than the other. The car was running at a moderate rate of speed. It was well lighted with electricity. It had a headlight which could be seen several hundred feet away. The appellees did see the headlight and approaching car at a distance of 880 feet from the place of accident. The motorman did not see the wagon until within twelve feet of the same, and immediately put on the brakes and proceeded to slow down. He stopped the car within six feet of the place where the wagon was struck, thus conclusively showing that the car was running at a moderate rate of speed, the undisputed testimony being that it was running at the rate of six miles an hour. There is evidence that one of the appellees and some other witnesses who were in the wagon, apprehending the danger, started back and waved or hallooed to the motorman to stop the car, and it is contended that if the motorman had been attending to his duty he would have seen the waving and heard the calls, and could have stopped the car in time to prevent the collision. All of this,...