Lott v. Frankford & Southwark Pass. R. R.

Per Curiam,

In view of the testimony, it was clearly the duty of the learned trial judge to submit this case to the jury; and he did so in a clear, concise and impartial charge, of which the defendant company has no just reason to complain. To have instructed the jury, as requested in either of defendant’s points, recited in the first four specifications, would have been plain error. Instead of showing “ that there was no unnecessary or wanton sounding of the whistle,” etc., the testimony tended to prove quite the contrary. The defendant company’s right to use Kensington avenue was not exclusive. It was in common with the public; and wherever such common user of a highway exists, it is the duty of railway companies to exercise such watchful care as will prevent, as far as possible, accidents or injuries to persons and property. In such circumstances, a greater degree of care, on the part of the railway company as well as the public, is required. The degree of care to be exercised must necessarily vaiy with the circumstances of each case: Gilmore v. Railway Co., 153 Pa. 31.

The testimony was also conflicting, and presented questions of fact which were necessarily for the consideration of the jury. In any view that can be taken of the case, it could not have been withdrawn from their consideration.

There is nothing in either of the specifications of error that would justify a reversal of the judgment.

Judgment affirmed.