Kraut v. Frankford & Southwark Phila. City Pass. Ry.

Opinion by

Mb, Justice Fell,

The defendant has two tracks on Berks street, which curve northward into Front street. On the night of the plaintiff’s injury he was walking south on the west side of Front street, with the intention of crossing Berks. The substance of his testimony is that when he reached the corner of these streets, and before he left the pavement, he saw a car coming east on Berks street, on the track further from him, and twenty or thirty yards from the crossing. Supposing that he would have time before the car reached him, he started to cross Berks street on the flag or stepping stones. After crossing the tracks nearer to him, he observed, for the first time, that the car was approaching rapidly, and had almost reached the crossing. He stopped in the space between the tracks to allow it to pass, and then, thinking that in turning the curve the horses would be out of the tracks, he stepped backward a step or two to avoid them. As he did so his foot went into a hole, or among loose cobble stones, and sank down, and he was thrown forward. He fell with both arms across the track and in front of the hind wheel of the car, which passed over them, causing such injuries as to require amputation.

The duty of the defendant to -keep the street in proper repair, and the fact that the car approached the crossing at an unusually rapid rate, were either admitted or so clearly established at the trial as not to be in dispute. There was the widest difference in the testimony as to the condition of the crossing, whether it was well paved and reasonably safe or whether there were holes in the surface caused by the displacement of stones which were lying loose. Whether safe or unsafe, there had been no change in the condition of the crossing for some months before the accident.

The charge of the learned judge presented clearly and accurately all the questions involved, and the matter proper for consideration now is within very narrow liniits.

There seems to be no sufficient reason for entering upon any discussion of remote and proximate cause, to which so much attention was given by counsel for the appellant on the trial of the case and its argument here. Assuming the facts as established by the verdict, the plaintiff on a rainy night reached a street crossing where there were two tracks. A car at the distance of sixty or seventy feet wa.s approaching. He had but fifteen or twenty feet to walk in order to cross in safety before it. He started to do so, and after crossing one track he observed, what he before had no reason to apprehend, that the car was approaching with unusual rapidity. To avoid it he stopped. Instantly it occurred to him that he was too near the track, and he stepped back and met the second cause of danger — the defective pavement. The defendant was responsible for both causes; the plaintiff had notice of neither until the necessity for immediate action was upon him, and in his attempt to avoid one he stepped into the other. If either cause had been absent the accident would not have happened. The unusual speed of the car and the defective crossing were both factors, and as the defendant was responsible for both, it is useless to speculate as to which was the remote and which the proximate cause.

There remains a question which is fundamental, and not free from doubt — whether there was such a connection between the condition of the street and the plaintiff’s fall as to establish the One as the cause of the other. The cause of the fall cannot be said to be clearly established. No witness saw what occurred until the plaintiff was in the act of falling. His injuries followed immediately. It would not be expected that a truthful witness could describe accurately the sequence of events occurring in a single moment between the beginning of his fall and the crushing of his arms. An untruthful one would have supplied all the necessary details. The plaintiff was stepping backward, and did not see the hole or loose stones. Had his injuries been slight, more accurate details could have been expected, but only as the result of subsequent observation.

Taking the case as a whole, we cannot say that the jury was left to speculate as to the cause of the fall. The plaintiff testified : “ So in stepping back I just stepped into a hole or loose cobble stones, and my foot sank down and pitched me forward, and in falling forward I put my hands out to save myself and both went under the wheels, and after that I recollect nothing.” On cross-examination he said that he could not tell whether his foot went down among loose stones or into a hole, that he simply knew that it went down. There was other testimony that there were holes in the surface of the crossing, and loose stones on it. This is not demonstration, but demonstration is not necessary. The exact cause of plaintiff’s fall, whether resulting from holes or loose stones, for which the defendant would be liable, or from mere unevenness and irregularity in the surface of the crossing, for which it would-not be liable, is not clear of doubt; but the finding of the jury had a basis of fact and reasonable inference which takes it Out of the realm of mere conjecture.

The judgment is affirmed.