DocketNumber: Appeal, No. 11
Citation Numbers: 27 Pa. Super. 89
Judges: Beaver, Henderson, Orlady, Orxady, Porter, Rice, Smith
Filed Date: 1/17/1905
Status: Precedential
Modified Date: 2/18/2022
Opinion by
Taking the most liberal view of the plaintiff’s proof, the ' driver of the wagon was guilty of contributory negligence in entering upon the tracks. He testified that while driving along a level street which crossed the car tracks at right angles, he looked for an approaching car as he passed the house line, at least twenty-two feet from the first car rail, and did not look again until the horse was upon the tracks, at the very moment of the collision. He saw the car when he looked the first time, and either miscalculated the rate of speed or its distance from the crossing. The accident resulted from his error of judgment, and he had full control over its determining causes. He saw the headlight of the car, and did not need an additional signal of its approach.- He had a clear view along an unobstructed street, the horse was trotting and he slackened its gait, then, as he expressed it, “ When I seen I could cross the track I let the horse out again and he started to cross the track.” There was no evidence that the car was moving at an unusual rate of speed. The accident occurred on a busy street, and the care, commensurate with the circumstances, which is demanded by all of the decisions, required him to do more than he claims to have done. From his testimony it is apparent that if he had continued to look, and be watchful after passing the house line, or looked before entering upon the tracks, the accident would not have happened. The motorman may have been negligent in not giving a gong signal, or in not keeping the car under better control, but assuming both of these neglects of duty, they do not relieve the driver from exercising due care. His measure of duty is clearly defined in Moser v. Union Traction Co., 205 Pa. 481 : “ The driver of a wagon may stop so close to the track of a street railway that the nose of his horse may almost touch the passing car, and yet be safe. But when he undertakes to lock for an approaching car while he is
The judgment is affirmed.