Rowland v. Wanamaker ( 1899 )

Opinion by

Mr. Justice McCollum,

This suit was instituted for the recovery of damages for personal injuries caused by a collision with one of the defendants’ delivery wagons. On the day of the accident plaintiff and a school girl acquaintance were riding on their bicycles on the road leading from Ashbourne to Cheltenham, a short distance north of the city of Philadelphia. Not quite half way down a hill on this road is a sudden bend in the road which obstructs the view of travelers approaching from either direction. The curve was dangerous also from the fact that the grade was steep. Several other bicycle riders on different occasions, in riding rapidly down this hill, had been unable to turn on reaching this point and had ridden over the wall on the further side of the road. Plaintiff testified that he knew of this danger, and was accordingly riding slowly and backpedaling. He testified as follows with regard to the accident: “ The gear on my wheel was larger than the one on hers, so that I got to the top of the hill first. When I got down to this turn I just.had a glimpse of the horses and I did not know anything after that. ‘ Q. What side of the road were you on ? A. The right side, my right-hand side.’ ” His companion testified as follows: “ I was going down and using my brake when I heard some sort of a commotion and men calling, and I got there just in time to see him falling, it seemed under the horses’ feet and near the wheel of the wagon. I rode down on the right-hand side and when I got there he was right in front of me. ‘ Q. Where was the wagon ? A. The right wheels were about in the center of the road and the left front wheel of the wagon was right at his body.’ ”

None of the plaintiff’s other witnesses saw the accident, but several of them were in the vicinity of it and reached the place soon after it occurred. Neither their testimony nor that of the plaintiff or his companion, considered separately or combined, established negligence on the part of the defendants or furnished ground for an inference of it. This is the conclusion reached by the learned court below, and in it we concur. The concurrence is the result of a careful reading and consideration of all the testimony presented by the plaintiff. If the defendant had moved for a nonsuit at the close of the plaintiff’s evidence in chief it would have been the plain duty of the court to grant it. No motion for a nonsuit having been made the testimony on the part of the defendants was presented, and at the conclusion of it it was followed by the testimony of the plaintiff in rebuttal. The testimony of the four witnesses called by the defendants showed that the plaintiff on nearing the curve turned from the right-hand side across the road to the left-hand side where he came in contact with the horses and wagon then ascending the hill. It was not controverted in rebuttal. It is not, however, a matter of vital importance to determine at what point in the road the horses and wagon were at the time of the collision. There was sufficient room for the bicycle to pass to the left or to the right of the team. The evidence clearly established this fact, and did not admit of a different conclusion. The testimony of the plaintiff’s companion in the ride towards Cheltenham was alone sufficient to sustain it.

There is no evidence in the case on which to base a charge of negligence against the defendants or their driver. The question whether the plaintiff was properly chargeable with negligence need not, therefore, be determined.

Judgment affirmed.