Hess v. Baltimore & Ohio Railroad , 1905 Pa. Super. LEXIS 167 ( 1905 )

Opinion by

Rice, P. J.,

This action was brought by John E. Hess for the injuries he received in the fire described in the case of Trexler v. Baltimore & Ohio Railroad Company, ante, pp. 198 and 207. All of the questions raised upon the defendant’s appeal in that case are raised in this case; but in this case there is the additional question whether the court ought to have charged the jury that the plaintiff was guilty of contributory negligence in not leaving the car before his injuries were inflicted. We are of opinion that this was properly a question for the jury and not for the court. The plaintiff testified that if help had come when he called he could have put out the fire and saved the horse and himself too. Until the engine was attached to the car he was actively engaged in that effort. He testified that he had no notice that the car was to be hauled away and that while this was being done he was trying to get the blanket, which was on fife, off the horse. He testified further that the car was being moved at such a rapid rate it was unsafe for him to jump. If he had deserted his post of duty at that time and left the stallion to its fate, and in jumping from the car had been injured, the defendant, with much better grace and equal plausibility, could have requested the court to declare that his action was negligent. Where a person, without fault on his part, is placed in a position of danger or embarrassment through the negligence of another, he will not be held guilty of contributory negligence for failure to use all possible means for his safety; if he acts in good faith and his conduct under all the circumstances is that of a man of ordinary prudence, he is not chargeable with negligence, and whether he did so act is a question for the jury. This statement of the law, taken from 13 P. & L. Digest of Decisions, col. 21673, is sustained by numerous cases and the principle is applicable here. Moreover, the court by affirming the defendant’s fourth point submitted the question to the jury in the manner requested and therefore the defendant has no just ground to complain.

But for the error in the submission to the jury of the testimony relative to the remark of the unknown bystander this case was well tried. We have discussed that question in the Trexler case. The remarks apply with equal force in this case.

.Judgment reversed and a venire facias de novo awarded.