Kleinert v. Rees , 6 Pa. Super. 594 ( 1898 )

Opinion by

Beaver, J.,

No fault is found with the manner in which the facts of this case were submitted to the jury, if there were any facts to be submitted. The court below was asked to say in a point submitted by the appellants: “ There is no such evidence of neglect in this case as ought reasonably to satisfy you thereof and, therefore, I instruct you, on the whole case, your verdict should be for the defendants,” which was declined.

The wagon of the defendants was being driven rapidly; so rapidly that the witness, Mrs. Young, says: “I knew it was a heavy wagon coming down the street and judged it was a runaway'.” As to this the testimony of the plaintiff and the only other living eye-witness of the accident who was called is clear. The turn into Juniper street was made unexpectedly and sharply; the plaintiff supposed the wagon was to continue its course down Arch street. The accident occurred at the curb either just as she stepped down from the pavement on to the street or was attempting to step back from the street to the pavement. It is immaterial which. The significant fact is that she was struck by the near horse, that is the horse on the left side, at the curb, which would clearly indicate that the turn from Arch street was made so hurriedly that the driver was unable to bring his horse in to the middle of Juniper street at the crossing.

No effort was made to stop the wagon. The driver says: “ I hollered and she seen the peril she was in and backed back and fell as the horse hit her — the horse on the near side.” It is evident that the driver saw the peril as soon as the plaintiff. He made no effort to stop the horses before the accident, and yet he did stop them as soon as it happened.

As we said in Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320, “ It was the duty of the driver to approach the street crossing recognizing the fact that people might attempt to cross at that street and, therefore, it was his duty to have his team in such a condition that, if the occasion required, he' would be able to stop it.” If his team was in such a condition as would enable him to stop it, it was his duty to do so. If it was not, it was a plain violation of his duty to pedestrians. In either case it was negligence. The evidence of negligence was clear and abundant, although to some extent denied. It was for the jury to say whose testimony was the more worthy of credence. It would have been manifest error for the court to have affirmed the defendants’ point.

The judgment is affirmed.