Cleary v. Pittsburgh

36 A. 323, 179 Pa. 526, 1897 Pa. LEXIS 686

• Court: Supreme Court of Pennsylvania
• Decided: January 4, 1897
• Docket: Appeal, No. 179
• Status: Published

Opinion

Opinion by

Mr. Justice Mitchell,

It is charitable to suppose that the plaintiff’s recollection was so confused after the accident as to make her testimony worthless, for she testifies that she looked around in the direction of the bridge and there was no car there, whereas the uniform and indisputable testimony of everyone else who saw the accident, including her own witness O’Hara, was that the car which struck her was within fifteen to twenty feet of her at that moment. This would therefore be a clear case of contributory negligence by stepping in front of a moving car, within the rule in Carroll v. R. R. Co., 12 W. N. C. 348, were it not for the fact that appears clearly even in the defendant’s evidence, that the car had also stopped. We have therefore the case of a foot passenger about to cross a street, a car stopped just before reaching the crossing, each apparently expecting the other to wait, and then both starting so nearly together that a collision became unavoidable. Under such circumstances only a jury could say where the fault lay.

■ The recital of the testimony by the judge in his charge did not follow the language of the witnesses exactly, indeed it would have been very difficult to repeat much of it precisely, but we have not been convinced that he made any substantial misstatement of the substance of it.

Judgment affirmed.