Oster v. Schuylkill Traction Co.

Pee Cueiam,

The motorman testified that when he was “ fifty or sixty yards away, maybe more than that ” he saw children in the road on both sides of the track, and only a few feet from it. He knew the schoolhouse was there and seeing the children in the road was notice to him that it was recess, or at least that the school was" not in session. These circumstances put on him the duty of at once getting his par under special control. Whether he did all that was reasonably proper for that purpose was necessarily a question for the jury. The cases of this kind where it is for the - court to direct the verdict are confined to those in which the uncontested evidence leads to the conclusion that the child ran in front of the car so quickly and under such circumstances that the driver or motorman had no reasonable ground to apprehend such action and no time after it to avoid the collision. In such cases the direction by the court is based on the entire absence of any sufficient evidence of defendant’s negligence.

The only other question raised by the assignments of error is not important. The offer of the conversation with the motorman or conductor as part of the res gestee was not as precise in respect to proximity of time and place as it might reasonably •have been made, and might have been rejected on that ground, but the whole conversation testified to amounted to no more than a question by the motorman whether the witness had heard the bell ring, and the reply that he had not. This was wholly unimportant in affecting the result.

Judgment affirmed.