Boggs v. Pittsburg, McKeesport & Greensburg Railway Co.

65 A. 535, 216 Pa. 314, 1907 Pa. LEXIS 807

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1907
• Docket: Appeals, Nos. 91 and 92
• Status: Published

Opinion

Per Curiam,

The plaintiff who was injured testified that at the brow of the hill he looked both ways and “ saw nothing in sight.” At that point he could see 500 feet in the direction from which the car came. He then drove down, and near the crossing stopped his horse, looked, listened and there being no car in sight or hearing, “ drove a natural gait across.” He thus not only made out a case clear of contributory negligence but affirmatively showed care. No witness directly contradicted him, though Parks, who was driving up the hill after passing the plaintiff at the crossing, testified that he met the car coming down, saw the motorman throw off the power, and looked back and saw the plaintiff driving on the track. This account is not reconcilable with plaintiff’s, but the conflict could only' be settled by the jury.

But further on the plaintiff testified that if there had been any car on that hillside he could have heard it. From this the appellant argues that it is clear that plaintiff did not look or listen as he should have done, and considering the distance to the crossing, the highly improbable rate at which the car must have been traveling, and the general circumstances of the situation the argument presents a strong inference that the plaintiff’s account was not correct. But it was an inference of fact, and not the only one that the evidence would permit. Improbable as the plaintiff’s story seemed, it might be true, and only the jury could say that it was not. It has been often said the rule of Carroll v. Penna. R. R. Co., 12 W. N. C. 348, is a good one and will not be relaxed, but it is only applicable to clear cases.

Judgment affirmed.