Kelly v. Pittsburg & Birmingham Traction Co.

10 Pa. Super. 644, 1899 Pa. Super. LEXIS 335

• Court: Superior Court of Pennsylvania
• Decided: July 28, 1899
• Status: Published

Opinion

Opinion by

Oblady, J.,

Under the evidence in this case it was clearly for the jury to decide whether the motorman was negligent in not having his car under better control at the time of the accident. The plaintiff testified that owing to the uneasiness and fright of his horse he signaled to the motorman that he was in danger, and that the warning was not heeded. The court below left the whole question to the jury with proper instructions and defined the duty of each involved in the accident, by saying: “ If he had seen the horse coming along on the track, without any indication of anything wrong, moving along quietly, he would not be bound to anticipate that there would be an accident, and yet he must keep a lookout, so that if there should be a sudden emergency he could control his ear, slow it up or stop it if necessary. If the plaintiff’s horse was restive, prancing, and indicating that the driver had not control of him when forty feet or more in front of the street car, and if the motorman was looking and saw that, and did not do anything in the way of checking his car, or preparing to meet any sudden danger, it is for the jury to say whether that was not carelessness or negligence on his part — negligence, not to look and see, until he got right into collision with the horses.” The instruction was as favorable to the defendant under the facts suggested by the court as it was entitled to expect.

The defendant did not ask for binding instructions, and there was ample evidence to warrant the verdict.

The judgment is affirmed.