Trumbower v. Lehigh Valley Transit Co.

Opinion by

Me. Chief Justice Fell,

At the place of the accident in which the plaintiff was injured, the defendant’s track was in the middle of a narrow but much used turnpike road. Snow had been thrown from the track on the sides of the road and was of a depth that made it difficult for vehicles to travel at the sides of the road or to turn from the track to the side when cars or vehicles going in an opposite direction were met. This condition had existed for several weeks during which time travel had been practically confined to the track. The plaintiff, a young woman, and two other persons who accompanied her, had been met at a. railroad station by a friend, who was taking them in his carriage to his home as his guests. It was a bright, moonlight night and there was an oil lamp on the front of the carriage. The road was straight for a long distance but the undulations of its surface obscured at times the headlight of a moving car. The horse and carriage were struck by a car which approached from the direction in which they were going. The testimony in relation to the speed of the car, the condition of its headlight, the failure to give warning of its approach, the depth of the snow at the sides of the road and of the care exercised by the driver and by the plaintiff, who was at his side, on the front seat of the carriage, to look out for their own safety was conflicting. It was submitted to the jury by a charge which was full and fair to both sides and exceptionally clear and accurate and to which the only error assigned is the refusal to direct a verdict for the defendant.

There was testimony which tended to show that the snow at the sides of the road was thirty inches in depth and packed and frozen so that vehicles could not pass through it or turn from the track, except at places where openings had been made; that all the occupants of the carriage were vigilant in looking for a car, and that when they first saw one it was two hundred or three hundred feet in front, running at the rate of thirty-five or forty miles an hour, that its headlight was very dim and no notice of its approach had been given; that the driver at once looked for a place where he could turn out and that the collision occurred while he was in the act of turning into an opening at a gateway.

It may be in view of all the testimony in the case, that the driver relied too much on the motorman looking out for him and failed to act with ordinary prudence. But with the driver’s negligence we are not concerned unless it affected the plaintiff’s right to recover.

The negligence of the driver of a private conveyance cannot be imputed to a passenger who has no control over him: Carr v. Easton, 142 Pa. 139; Little v. Telegraph Co., 213 Pa. 229; Walsh v. Ry. Co., 232 Pa. 479; Kammerdiener v. Rayburn Township, 233 Pa. 328. A passenger is answerable for the consequences of his own negligence and if he voluntarily goes into a patent danger that he could have avoided or joins the driver in testing a danger, he cannot recover: Crescent Twp. v. Anderson, 114 Pa. 643; Kunkle v. Lancaster County, 219 Pa. 52. The plaintiff was a guest and had no control over the driver, and the danger in driving in the tracks was not so manifest that she can be said to have been negligent.

The judgment is affirmed.