Cannon v. Pittsburg & Birmingham Traction Co. , 194 Pa. 159 ( 1899 )

Opinion by

Mr. Justice Fell,

The plaintiff was driving at night on a street which was but twenty feet wide between the curbs, and on which were two tracks of an electric railway company. He was on the right-hand track going towards Pittsburg, and received notice of a •car approaching behind him on that track. In order to allow it to pass he turned into the left-hand track, intending to return to the other track when the car had passed. That car overtook him at the foot of a steep hill about 200 feet in length, and’ stopped for a moment to take on passengers. He proceeded up the hill, and when the car was beside his wagon another car came suddenly into view from the other side of the hill and in front of him on the track on which he was driving, and ran into his team, causing the injury of which he complains. When the motorman reached the top of the hill he saw the plaintiff’s team and tried to stop the car. The plaintiff was in a position of danger from which escape was impossible. He eouid not turn to the right because of the car at his side, nor to the left because there was but four feet of space between the track and the curb.

At the trial the main subjects of dispute were the speed at which the car was running and the- distance from the crest of ■the'hill-to the place where the accident occurred. The importance of the latter was in showing the distance which the motorman had in which to stop his car after he saw the wagon. The plaintiff’s witnesses fixed the distance at 140 feet, and’ those of the defendant at 60 feet. There was the usual conflict as to the speed of the car. The testimony on these subjects was clearly sufficient to make out a prima facie case of negligence.

The only ground on which the plaintiff could be adjudged guilty of contributory negligence is that, when he turned out to let the first car pass, ho did not stop and wait until it had passed, and then return to the track which he had left, instead of approaching the crest of the hill on the track on which there was danger of meeting a car. Because of the narrowness and grade of the street the situation was one calling for extreme caution, but the court could not have said that in going on the plaintiff was negligent. Being familiar with the locality, he had reason to suppose that he might 'moot a car on the track on which he was driving before he had an opportunity to turn out, hut not that he would meet a car running at such speed over the narrow crest of the hill that it could not be stopped in time to avoid a collision after the motorman saw him. He was justified in presuming that the car would be managed with the care and prudence which the situation demanded, and was not bound to guard in advance against the negligent act of another.

He was, moreover, by the necessity of turning out of the track suddenly placed, without fault on his part, in a position of danger, and in his effort to extricate himself he could not be held to the use of the best judgment: Penna. R. Co. v. Werner, 89 Pa. 59; Malone v. Pittsburg, etc., R. R. Co., 152 Pa. 390.

The judgment is affirmed.