Yingst v. Lebanon & Annville St. Ry. Co.

• Citation: 167 Pa. 438,31 A. 687
• Decision Date: 15 April 1895
• Docket Number: 293
• Parties: Mary Yingst v. Lebanon & Annville St. Ry. Co., Appellant
• Court: Pennsylvania Supreme Court

31 A. 687

167 Pa. 438

Mary Yingst v. Lebanon & Annville St. Ry. Co., Appellant

No. 293

Supreme Court of Pennsylvania

April 15, 1895

Argued February 21, 1895

Appeal, No. 293, Jan. T., 1895, by defendant, from judgment of C.P. Lebanon Co., Sept. T., 1893, No. 10, on verdict for plaintiff. Reversed.

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

At the trial it appeared that on July 29, 1892, plaintiff was injured by the overturning of a wagon on a street on which defendant company operated a line of electric railway. The substance of plaintiff's testimony was that the horse drawing the wagon became frightened while one of defendant's cars was some distance away and continued to shy as it approached nearer, that then the driver signaled the motorman with outstretched hand and with shoutings to stop the car; that no attention was paid to these signals that the car came on at "full headway" and "passed swiftly by," and that when opposite the car the horse backed and turned around suddenly, overturning the wagon, whereby the injuries were caused to her.

Ernest Witters, a witness for plaintiff, testified that as the car approached the driver shouted several times at the top of his voice to the motorman to stop, that he could not manage the horse; that the motorman did not heed these warnings but ran the car about a half square beyond the point of the accident before he stopped.

John Doody testified that the horse reared up while the car was still twenty or thirty feet away and that he could not say what the speed of the car was at the time. Other portions of the testimony are quoted in the opinion of the Supreme Court.

Defendant's points were, among others, as follows:

"2. The negligence charged in this case, by the plaintiff, being the excessive and improper rate of speed at which the car was run, and there being no proof that the car was so run, it is error to submit the question to the jury, and the jury should be instructed to find for the defendant. Answer: This point is reserved." [1]

"4. Street car companies, having as much right to run their cars on the streets of the city as other citizens to drive through them with their horses and carriages, are not responsible for horses taking fright at the movement of their cars. Answer Affirmed, provided the defendant's cars are run in the proper and usual manner." [2]

"5. Under all the evidence in this case the verdict of the jury must be for the defendant. Answer: Refused." [3]

Verdict and judgment for plaintiff for $1,000. Defendant appealed.

Errors assigned were (1-3) above instructions, quoting them.

Judgment reversed.

Grant Weidman, for appellant. -- The burden of proof was on plaintiff to show negligence: R.R. v. Hummell, 44 Pa. 379; Booth on St. Ry., sec. 298; Hazel v. Pass. Ry., 132 Pa. 101; Piollet v. Simmers, 106 Pa. 95; Pittsburg St. Ry. v. Taylor, 104 Pa. 306; Steiner v. Traction Co., 134 Pa. 199; Ehrisman v. Pass. Ry., 150 Pa. 180; P. & R.R. Co. v. Heil, 5 W.N.C. 91.

A railroad company is not liable for damages resulting from the ordinary legitimate and lawful use of its road: Drayton v. R.R., 10 W.N.C. 55; Steiner v. Traction Co., 134 Pa. 202.

Street car companies are not responsible for horses taking fright at the movement of their cars: Chapman v. Zanesville St. Ry., 27 Ohio L.J. 90; Fox v. Borkey, 126 Pa. 169.

There was no evidence to justify an inference of negligence and the case should have been taken from the jury and a verdict directed for the defendant, as was requested: Traction Co. v. Bernheimer, 125 Pa. 615; Fouhy v. Pa. R.R., 17 W.N.C. 177; Burrell v. Gowen, 134 Pa. 527; Phila. & R.R.R. v. Yerger, 73 Pa. 121; Jennings v. R.R., 93 Pa. 340; Goshorn v. Smith, 92 Pa. 435.

Under the authority of Fischer v. The Ferry Co., 124 Pa. 154; Traction Co. v. Bernheimer, 125 Pa. 619; Thomas v. Pass. Ry., 132 Pa. 513, this testimony was insufficient to submit to the jury in order to find the facts.

The negligence of the railway company, if any, was not the proximate but the remote cause of the accident, and therefore there could be no recovery: West Mahanoy v. Watson, 112 Pa. 574; South Side Ry. v. Trich, 117 Pa. 390.

Thomas H. Capp, J. M. Funck and George B. Schock with him, for appellee. -- The defendant was negligent in running the car at a great speed: Dunseath v. Traction Co., 161 Pa. 129; Schnur v. Citizen Traction Co., 153 Pa. 29; Ehrisman v. Harrisburg Ry. Co., 150 Pa. 186; Gilmore v. Pass. Ry., 153 Pa. 31; Gibbons v. Wilkes-Barre St. Ry., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422.

The question of proximate cause where the facts are disputed is for the jury: Twp. of West Mahanoy v. Watson, 112 Pa. 574; Bunting v. Hogsett, 139 Pa. 373.

Before GREEN, WILLIAMS, McCOLLUM, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

The plaintiff's injury resulted from the upsetting of a wagon in which she was riding, occasioned exclusively by the fright of the horse drawing the wagon. The horse took fright upon seeing an approaching street car on the defendant's track, and, turning suddenly away from the road, the wheel of the wagon struck a stone or other obstacle, and this caused the overthrow of the vehicle. There was no collision of any kind, the wagon was not on the track but was being drawn upon the highway on which the defendant's track was laid.

The only ground upon which the claim of the plaintiff for damages was asserted in the statement of cause of action, and alleged on the trial, was negligence in running the car at too great speed and in not regarding signals given by the driver of the wagon. As the right of the defendant company to run its cars on its tracks is fully equal to the right of the plaintiff to ride in a wagon on the street, the mere fact that the horse took fright at the sight of the car confers no right of action whatever against the defendant: Hazel v. Passenger Railway Co., 132 Pa. 96; Piolett v. Simmers, 106 Pa. 95; Pittsburg St. R'y Co. v. Taylor, 104 Pa. 306. It is only for an abuse of the right to the injury of another that the company is responsible. In this case it is alleged that the car was running at an excessive rate of speed, and that this was such an abuse of the right of passage as to amount to culpable negligence which caused the fright of the horse and thereby occasioned the injury to the plaintiff. The case therefore centres upon this proposition of fact. Does the evidence sustain this charge? To make out such an allegation it is necessary to know what is the standard of legitimate speed for an electric car on such a street, and, next, was that standard exceeded in this case. The plaintiff, not being a passenger, is subject to the burden of proof, and must establish the truth of her allegations by affirmative testimony, failing in which, she fails in her suit.

Upon this subject, having read every particle of the testimony with patient attention, we are bound to say that the plaintiff has furnished no proof whatever, either as to what is the lawful rate of speed at which an electric car may run over such a street or any street, or as to whether the rate at which this car ran at the time of the accident was in excess of lawful speed. Her whole testimony as to the fact of the accident consisted of the evidence given by herself and two other witnesses, Witters and Doody. Not one of them was even asked the question whether the speed of the car was greater than was allowable for an electric car to run, or whether they had any knowledge upon that subject. No experts in such matters were called to testify as to what would be a reasonably prudent rate of speed for such a car over such a street, and in short no evidence whatever was given upon that subject. Nor was any evidence given for the plaintiff as to the actual rate of speed at which this car was run, and therefore the plaintiff did not furnish any proof which could guide the jury in considering whether the defendant was guilty of any negligence in this regard.

As electric cars may lawfully be run upon the streets, and may certainly maintain a fair rate of speed, it is not possible to establish an allegation of negligence in respect of speed without testimony showing a standard, and further testimony showing a breach of the standard, and no jury can have liberty to deal with such a question unless there is practical evidence in the case upon these subjects. In this case there was none.

All that the plaintiff said in her testimony in this connection was as follows, "Then the car came at full headway, then when the horse saw that he could not get backward, then he made a sudden turn and threw us out." On cross-examination she was asked, "Q. Did the horse do anything then? A. He looked around, but the car was too quick in passing and he hadn't time to do anything; they were running fast. They went pretty fast past us."

Again she said, "Then as we came to the railroad, or crossed the railroad, they came swiftly past us, and then the boy put up his hands that they should stop, and said they should stop."

This was all of her testimony on the subject of speed, and the vice of it is, its utter inadequacy. Electric cars have a lawful right to go "fast," to go with "speed." The fact that they can do so is one of the great reasons of their being. When a witness says therefore in a given case that the car ran swiftly or with speed, he says nothing to the purpose when the inquiry is as to negligence in the rate of travel. Such testimony is altogether too uncertain for judicial action, and most especially so when there was no collision but only the fright of a passing horse. In this case it is at best only the thought of the witness, and that witness the plaintiff, as to what is speed and what is swiftness. In her own...