DocketNumber： Appeal, 173
Judges： Orlady, Porter, Henderson, Trexler, Keller, Linn, Gawthrop
Filed Date： 10/30/1924
Status： Precedential
Modified Date： 10/19/2024
Argued October 30, 1924. A two-seated carriage, driven eastward on the Parkway by Nicholas Termini, his son on the front seat with him and his wife occupying the back seat, was struck by a street car traveling southward on 22d Street. The horse was killed, the carriage smashed, and the occupants were injured. Husband and wife brought suits; he was nonsuited because of contributory negligence; her case went to the jury and she got a verdict. He accepted the result of his suit but defendant appealed from judgment on her verdict.
Two points are now made: first, that her contributory negligence bars recovery; and, second, defendant was not negligent.
1. There is no evidence as to what, if anything, the wife did just before the collision, except the following: in chief, she said, "I was sitting in the carriage." In cross-examination, this appears: "Q. You were sitting beside your husband in the carriage? A. I was in the back seat. Q. Have you told us everything you did and everything you saw about this accident?. ..... A. That is all." Appellant contends that it follows from her evidence, that she failed to observe the measure of care imposed on one traveling in a vehicle driven by another not a common carrier. We must, however, consider her testimony in connection with the other evidence in the case, always remembering that we may inquire only whether there is evidence to sustain the verdict, not whether we should have found the facts as the jury did.
The husband said that his horse and carriage were about 20 feet over all, and that when he was "about 20 feet away from the car track," "the car was standing still, — passengers getting off ......," "over 100 feet away" on his left side. He also said, "The second time I saw the car it was about 80 feet away," at a time "the horse's head had just started to cross the track." Before he completed the crossing, the car struck the back part of his carriage and did the damage. The son testified that *Page 595 he saw the car "a hundred and some feet over at the car stop letting passengers off, and I looked — I gave the first glance and saw the passengers getting off, and it was still raining, and I said `Keep right on going ahead,' and the horse and carriage kept on going, and just as the horse was on the track, in fact, his front feet were going off the track, the car started. It approached and we just kept on going, and the next thing we saw was just as the carriage got off the track......" They gave the hour of the accident as six o'clock p.m. on the 19th of August.
The witnesses for the defendant tell a very different story. The motorman states the time as 8:12; says it was "dark, raining; pouring rain and thundering"; "it was as dark as it could be." He states that "all the street lights were out," and that he did not see plaintiff's carriage until he was within 15 feet of it. He was asked whether he rang his bell in crossing the Parkway, and answered that he did so, — "all the way across, yes sir. I couldn't see nothing because all the lights were out." His testimony in other respects also materially contradicted the evidence of plaintiffs, though we refer now only to what may be substantially relevant on the point whether the wife's contributory negligence can be determined as a matter of law or not. The evidence of the conductor and of two passengers in the car corroborated the motorman as to the hour, the darkness, and the rain.
With the jury in possession of such contradictions, we inquire what there is to permit the court to hold that the wife omitted any duty in the circumstances. "If she voluntarily went into a danger that she could have avoided or joined her husband in testing a danger of which she knew, her contributory negligence would prevent her recovery": Senft v. W. Md. Ry. Co.,
It does not appear that the wife had ever been along there before, or that she knew the car tracks were there; or assuming her familiarity with the place, that as she approached in the darkness and in the rain described by defendant's witnesses, she recognized where she was or could have seen any more than they saw. From the rules of decision quoted, the trial court could not declare her guilty of contributory negligence unless the danger was or should have been manifest to her, "with adequate opportunity to control the situation"; if they drove along in the darkness and in the rain, as the jury may have found, the danger may not have been manifest nor would she have had adequate opportunity to control the situation. The trial judge submitted her contributory negligence to the jury and no criticism is made of the manner in which he submitted it. Contradictory as the evidence is, the jury had the duty of selecting what it deemed credible and that selection is represented by its verdict; as there is evidence to support it, we may not inquire further.
2. The other objection made by appellant is that there is no evidence of negligence. We have already quoted *Page 597 the motorman's testimony that it was so dark he couldn't see ahead of him a sufficient distance to stop if necessary. If that was the fact, it was negligence to proceed. No one has the right to drive a street car or any other vehicle on the public highway when he cannot see sufficiently to control his vehicle with due regard for the rights of others lawfully on the same highway. Moreover, the jury may have accepted the evidence of Termini that when he was 20 feet from the track, the street car was over 100 feet away standing, and discharging passengers, and that accordingly the collision could not have taken place if the street car had resumed its progress and crossed the street with the care required in the circumstances.
Judgment affirmed.