Short v. Philadelphia Rapid Transit Co. ( 1917 )

Opinion by

Orlady, P. J.,

The plaintiff’s employee was driving a double team west on Sansom street. As he approached Eighteenth street a car passed north on that street. He proceeded at a slow gait and when the horses’ heads were about three feet away from the near car rail on Eighteenth street, he saw another street car coming from Walnut street. While covering the distance between the curb and the track, which is five feet, the trolley car traveled from the middle of the block between Walnut and Sansom streets and struck the carriage about the middle of the body. The street was well lighted and the motorman could clearly see the team as it entered upon the car track. The first opportunity the carriage driver had of seeing the car was after he had passed the house line, and then he believed the street car ivas reasonably distant from him; the sides of the street being impeded by ice and snow he whipped up his horses to pass over the car track. The appellant’s contention is, that there ivas no proof of negligence on the part of the defendant, and further, that the plaintiff’s driver was guilty of contributory negligence. A fair analysis of the testimony does not warrant the latter conclusion. Sansom street is practically thirty feet wide. The rail near to the southernmost curb was 3' 6"; from the north rail to the north curb it was 11' 8"; the sidewalk on the Eighteenth street was twelve feet. The plaintiff’s driver, after passing the house line could see the car at the distance above given. The testimony was very conflicting as to the controlling facts in the case, and they were so fairly submitted to the jury that the only exception taken was to the refusal of the trial judge to direct a verdict in favor of the defendant. In Grupp v. Philadelphia Rapid Trans. Co., 42 Superior Ct. 271, we held, “It is not to be doubted that street railway companies have a superior right to the use of that portion of the streets occupied by their tracks. This right is qualified, however, by that of pedestrians and travelers with vehicles to cross the track in the exercise of care. It does not absolve a railway company from the exercise of care in like manner Avhen using the public crossings. The public right is not relinquished; it is only subordinated to that of the railway company: Evers v. Philadelphia Traction Co., 176 Pa. 376; Callahan v. Philadelphia Traction Co., 184 Pa. 425; Raulston v. Traction Co., 13 Pa. Superior Ct. 412. A traveler about to cross a street at a regular crossing is not bound to wait simply because a car is in sight. So strict a rule would erect a legal barrier against the use of a large proportion of the intersecting streets by other means of travel than cars. Where a car is at such, a distance from the traveler that he has sufficient time to cross if the car is moving at the usual speed, he ought not to be charged with negligence as a matter of law if he proceed. It is a necessary condition that crossings of streets be made in front of moving cars at street intersections in the cities. Persons so doing must use due care and are not permitted to take narrow chances, but there is a correlative duty to be performed by the company in running over the crossings. The plaintiff had a right to assume that the car Avould be run at the usual speed and in the usual manner, and if this had been done it seems not improbable that the accident would not have happened: Hamilton v. Consolidated Traction Co., 201 Pa. 351. He Avas not chargeable Avith notice that the car Avas not under the control of the motorman and could not be stopped. In Bickley v. So. Penna. Trac. CO., 56 Pa. Superior Ct. 113, it is stated: “In this conflict of evidence the rule is that, where the measure of duty is not unvarying, Avhere a higher degree of care is demanded under some circumstances than under others, Avhere both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved. And this is to be ascertained from all the facts and circumstances disclosed by the' testimony, and the inferences to be drawn from the facts are for the jury and not for the court: McMahen v. White, 30 Pa. Superior Ct. 169; Ryan v. Ardis, 190 Pa. 66; Sheets v. United Traction Co., 49 Pa. Superior Ct. 177.” In Hicks v. Altoona L. V. E. Ry. Co., 258 Pa. 148, it is stated: “When approaching a trolley track, a driver must take due care to get his horses under control; for it is a matter of general knowledge that a team cannot always be effectively managed, even by the best of horsemen; therefore, whether or not the driver made a reasonable effort to exercise the care required by the peculiar circumstances at bar, is an issue of fact, not of law. In other words, both the question of the defendant’s negligence and that of the driver’s alleged contributory negligence must be determined by a jury.

We see no reversible error in this record, and the judgment is affirmed.