Frey v. Conestoga Traction Co.

Per Curiam,

It is conceded that the negligence of the appellant was for the jury, but it is urged by learned counsel that the contributory negligence of the appellee barred a recovery and the court below should have so held. The situation at the time the collision occurred may be briefly stated. The appellee started to drive across from the west to the east side of College avenue, in the City of Lancaster. A track of the defendant company is in the middle of the avenue, distant about twenty-six feet from the west curb, and, when the appellee turned his horse to cross over it, the car which struck Ms wagon was from two hundred and fifty to two hundred and seventy-five feet away. He drove at a walk onto the track, and, seeing the approaching car about one hundred and sixty to one hundred and seventy feet distant, he urged his horse on, and, when it was upon the track, the car was about eighty-five or ninety feet away. The horse got safely over the track, but the wagon was struck and the injuries were sustained for which this action was brought. It further appeared from the testimony that the motorman just before the collision acted as if he was turning off the current, but instead of doing so, he turned it on. Upon the foregoing state of facts, supported by the testimony, a fair conclusion to be reached by the jury was that the appellee was justified in assuming that he had ample time to cross over the track if the car would approach him at a usual rate of speed, and he could not, therefore, be adjudged guilty of contributory negligence as a matter of law. Callahan v. Phila. Traction Co., 184. Pa. 425, and Hamilton v. Consolidated Traction Company, 201 Pa. 351, are conclusive of the correctness of the ruling of the learned court below, and the judgment is affirmed.