Thomas v. Citizens Pass. Ry. Co.

1. The mere opinion of a witness, who saw a collision between a street car and a carriage but has no knowledge or experience as to the stopping of cars or handling of brakes and lias testified to no specific act of negligence, that the driver of the car could have stopped it upon a descending grade in time to avoid the collision, is of little importance as proof of negligence on the part of the driver: Phila. Traction Co. v. Bernheimer, 125 Pa. 615. (а) The plaintiff, driving a phaeton, attempted to cross a street railway-track in front of a horse car approaching at a trot upon a descending grade. The distance of the car from her at the time was in dispute. Before starting to cross, she knew, from the tinkle of the bells upon the horses, that the car was approaching, but was prevented from seeing it by the curtains of the phaeton. As her horse stepped upon the track she saw the ear, but, concluding that she had time to cross, she kept on. (б) Just before she turned to cross, the driver of the car looked to one side, along a cross street, to see whether there were any passengers upon it desiring to board his car. There was no evidence that his attention was thus diverted unnecessarily or for any unreasonable time. As soon as he saw the plaintiff’s vehicle on the track, he energetically applied the brake and swung his horses over to one side of the track, but, notwithstanding, the car collided with the phaeton before the latter had passed over the rails: 2. The fact that in these circumstances the driver failed to stop the car in time to prevent the collision, was not sufficient evidence of negligence on the part of the passenger railway company to justify the submission of the case to the jury; moreover, as the plaintiff was guilty of contributory negligence in thus driving upon the track in front of the moving car, the company would be responsible, if at all, only for a wanton neglect of duty by the driver, of which there was no evidence.

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY. No. 473 January Term 1889, Sup. Ct.; court below, No. 127 March Term 1888, C. P. On February 20,1888, Helen L. Thomas brought trespass against the Citizens Passenger Railway Company of Norris-town, Pa., to recover damages on account of a collision between a street car of the defendant company and the plaintiffs carriage, alleged to have occurred through the defendant’s negligence. The defendant’s plea was not guilty. At the trial on December 19, 1888, the following facts were shown: The defendant company maintains and operates a street railway in the borough of Norristown. Its cars are drawn by horses over a single track laid along the middle of Main street. On the afternoon of December 5, 1887, the plaintiff drove down that street in her phaeton, and stopped and hitched her horse in front of a store below the corner of Main and DeKalb streets, his head pointing down Main street. When she had attended to some errands she returned, and, unhitching the horse, got into the phaeton. After doing so and before starting her horse, she heard the tinkle of the bells upon the horses attached to one of the defendant’s street cars, approaching from behind her upon Main street, on a descending grade. She tried to look back along the street, but the phaeton being closely curtained, she was unable to see the car. She started with the intention of driving down the street a few steps, crossing the rails and proceeding up the street again on the opposite side of the track, thus describing a curve almost in the form of a semi-circle. When she reached the rails and her horse had just started across them, she first caught sight of the car, her view having been obstructed until then by the curtains of her carriage. The plaintiff testified that when she saw the car she did not turn back to let it pass, because it was at least thirty feet from her, and she had reason to think there was time to cross in front of it; did not think there was any risk about it. When, however, the phaeton was almost half way over the track, the car collided with it, wrecking it and injuring the plaintiff’s horse, and, although she herself was not physically injured, she suffered afterward from a shock to her nervous system occasioned by the fright connected with the collision. The plaintiff called, also, Charles M. Wilson, George Holland and Andrew Fox, all of whom witnessed the accident. Their testimony tended to show that the horses drawing the car were proceeding down Main street at a pretty good trot; that, as the car crossed over DeKalb street, the driver looked to one side, along that street, though his head was not turned that way very long; that when his horses had crossed over DeKalb street, but his car was still on it, and Mrs. Thomas’s horse was just stepping on the car track, about twenty-five feet in advance of the car, Wilson called to the driver to hold on, or he would run into the lady’s carriage; that no whistle was sounded by the driver, and the car kept on until it struck the phaeton. Holland said that he did not suppose the accident would have happened if the driver had not looked down DeKalb street, and Wilson and Fox expressed the opinion that he had time to stop the car after Mrs. Thomas started to cross the track. Neither of these witnesses, however, was shown to have any experience or knowledge in the matter of stopping street ears. Wilson testified that he saw the driver apply the brake and swing his horses around to one side, until they were outside the track. Portions of the testimony for the plaintiff are more fully stated in the opinion of the Supreme Court, infra. A plot which was in evidence for the plaintiff, tended to show that the distance between the positions occupied by the car and phaeton respectively, according to the testimony of her witnesses, at the time the plaintiff started to cross the track, was greater than any of the estimates placed upon it by witnesses, and was in reality somewhere near fifty feet. At the close of the plaintiff’s testimony, the defendant moved for judgment of compulsory nonsuit. The court, We AND, J., refused the motion, delivering an oral opinion which is quoted in the opinion of the Supreme Court, infra. The defendant then called witnesses whose testimony tended to show that, at the crossing of DeKalb street and afterward, the car was going not faster than at the rate of four or five miles an hour; that the driver was holding the reins in his left hand and had his right hand on the brake; that while crossing DeKalb street he looked to each side, in compliance with a rule of the company, to see whether there were any persons on that street desiring to take passage on his car; that as soon as he saw the plaintiff’s carriage on the track, he applied the brake and exerted all his force to stop the car, and that, occupied as he was, he did not have time to whistle. Charles Mathias, the driver of the car, testified that he could have stopped it in fifteen or twenty feet, depending upon the gait at which he was going; that when he first saw the plaintiff, she was driving along side of him, and she whipped up her horse and attempted to cross the track immediately in front of his horses, and so close to them that the off horse threw his head around to let her pass. Charles A. Boettcher, who was a passenger upon the street car, testified that the plaintiff’s phaeton was about ten or eleven feet in front of the street-car horses when she attempted to cross the track. The testimony of other witnesses for the defendant tended to show that the distance between the vehicles was less than fifteen feet. At the close of the testimony the court, Weaiíd, J., charged the jury in part as follows: Under the common law, as well as under the statutory law, or ordinances of council, and because of the very necessity and the nature of a street railway, the company is entitled to certain privileges, because they are confined in this mode of travel to the rails, and it necessarily follows that it cannot conveniently turn from its track or avoid certain threatened dangers as can foot passengers or persons with other vehicles. And therefore, it would seem to bo the duty of a person traveling in an ordinary vehicle along the streets of a borough in which a street railway is laid, before attempting to cross it, to look to see whether there is an approaching car. A failure to do so, if a person would cross immediately in front of a car, would be such contributory negligence as would prevent the recovery for damages ensuing thereby. So it would be if a person were to attempt to cross a street without looking, immediately in front of an approaching carriage, because one person has no right to cross a street without looking to see whether there is threatened danger. Now, then, every person in Norristown has a right to cross the tracks of this railway company, provided they do so in a proper manner. A person approaching a car on a street railway is bound to give the right of way to the car for the reasons I have stated, and so a person driving alongside of a street car in the same direction in which it is going would have no right to attempt to cross the track, if by doing so the car would be obliged to stop, because the car would have the right of way. But if a person attempts to cross the tracks at what might appear to be a safe and convenient distance, and if, being in that position, a car should approach and the driver in the course of his duty should see a person in that position, it would be his bounden duty, if he could, to stop his car and not to run down the person so situated. And therefore, [although in this case you should find that this lady may have attempted to cross this track, at what might have appeared to be an unsafe distance, yet if, being in that position, the driver of the street car could have seen her, or did see her, and could have stopped his car in time to avert the accident, it was his duty to have done so. and if he did not, his company would be liable for damages.] 3 Therefore as a result of this, if you should find that this accident was occasioned by the negligence of Mrs. Thomas, she cannot recover, no matter to what extent that negligence contributed to the accident. If it contributed in any manner to the accident she cannot recover. But if it was occasioned by the failure of this street-car driver to stop his car, if he could have done so, then she could recover and the company is liable. Now, keeping in view this principle, let us briefly examine the testimony of this case..... Now, gentlemen of the jury, keeping in view the distances, as testified to by the various witnesses, in your opinion was this driver careless in not stopping his car from the time when he saw, or ought to have seen her, after he crossed DeKalb street? [You will remember this distance is estimated to be from twenty to thirty feet, and he testifies his car could be stopped within a distance of fifteen or twenty feet.] 4 'He had a right to look up and down DeKalb street for approaching passengers, provided it did not interfere with his sight of obstacles on the road before him; for, although this company might by its rules and regulations require its drivers to look for passengers, his primary duty was to look in front of him, so as to avoid accident from persons approaching or crossing his track. Now, [if you find that from the time when he crossed DeKalb street he could have seen this lady crossing the tracks, by the proper performance of his duties, and if he ought to have seen her, and that he had time to stop before he struck her and did not, then he would be guilty of such negligence as would render his company liable in this action.] 5 You will remember all the testimony relating to this particular part of the case, as testified to by Mrs. Thomas, Mr. Wilson, Mr. Fox and Mr. Holland, and say from that as to whether this driver was guilty of negligence, if you find that she crossed this track at the distance specified by her witnesses. On the part of the defendant, however, it is claimed that this lady crossed this track immediately in front of the horses of this car. The driver testifies that he had the linos in his hands; that he had tight reins; that he had his hand on the brake; that the car was slow; and that as he was going down the street past Y ost’s store this lady was driving opposite his car, and that without any notice to him, she crossed, or attempted to cross immediately in front of his horses, almost touching the head of the near horse, and that this compelled him to pull his horses to the left, suddenly put on the brake, and thus cause the collision. If you find that statement to be true, then I charge you as a matter of law that there can be no recovery in this case; because, if this lady drove alongside this car, she necessarily must have known it was there, and if she did know it was there, she had no right to turn her horse across the tracks in the manner testified to by the driver of the oar. The defendants have also called another witness who was a passenger in this car, Mr. Boettcher, whose testimony varies to some extent from that of the driver, and partly, however, corroborates him. He states that he saw this wagon crossing this track and, when it did so cross, it was not more than ten feet from the head of the horses. Now, gentlemen of the jury, if she attempted to cross at that distance from these horses’ heads, was or was not that a negligent act on her part? Could the street-car driver, without any notice, stop his horses within the distance of ten feet, and ought she not to have known that it was dangerous thus to attempt to cross, when the car was coming upon her at that distance? This, however, is a question for you to decide as to whether that part of it was negligence. I instruct you that if she attempted to cross immediately in front of the horses, that in law would raise the presumption of negligence, but [you are to decide as to whether it would be negligence if she attempted to cross at a distance of ten, or fifteen or twenty feet from the car.] 6..... The defendant has requested me to charge you upon several points of law: 1. Driving across the ear track, from twenty to thirty feet in front of an approaching car, was negligence on the part of the plaintiff. Answer: This is for the jury to decide, as to whether or not it was negligence thus to drive across.9 2. If tlie plaintiff was guilty of any contributory negligence she cannot recover. Answer: This is affirmed. 3. Under the law and the evidence, the verdict should be for the defendant. Answer: This is refused.10 The verdict of the jury was in favor of the plaintiff for $169.75. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal, assigning for error [inter alia] : 3-6. The parts of the charge embraced in [ ] 3 to 6 9,10. The. answers to the defendant’s points.9 10