Rively v. Media, Middletown, Aston & Chester Electric Railway Co.

76 A. 506, 228 Pa. 9, 1910 Pa. LEXIS 421

• Court: Supreme Court of Pennsylvania
• Decided: April 18, 1910
• Docket: Appeals, Nos. 346 and 347
• Status: Published

Opinion

Opinion by

Mr. Justice Brown,

These two cases were tried together and verdicts for the defendant were rendered on October 26,1904. A motion for a new trial was made in each case on the following day and was denied' on October 2, 1905: Nothing further was done until October 20, 1909, when the plaintiff in each case paid the jury fee, and on November 4, 1909, judgments were entered on the verdicts, from which these appeals were taken on -the eleventh of the same month. The motion to quash them, on the ground that they were taken too late, must be denied. While it is true that more than five years elapsed between the date of the verdicts and that of the appeals, they were taken within seven ■days of the entry of the judgments; and it is from a judgment, and not from a verdict, that an appeal lies: Act of May 19, 1897, P. L. 67. At any time after the verdicts were rendered in its favor the defendant below could have entered judgments on them by paying the jury fee, and the time for taking the appeals would have at once commenced to run. If it saw fit not to enter the judgments to which it was entitled, it cannot complain of the failure of the plaintiffs to have judgments entered on the verdicts until they were ready to take their appeals, for the judgments were of no úse at all to them except to entitle them to appeals for the purpose of bringing to the attention of this court errors alleged to have been committed on the trial.

Verdicts were directed for the defendant on the ground of the contributory negligence of the plaintiffs. A mere recital of the facts as established by the evidence submitted by them is sufficient to show that the question of their contributory negligence should have gone to the jury. One of them — Albert K. Taylor — was the owner of the team in which he and the other plaintiff were riding. When they reached a certain point in the public road they found the driveway covered with ice, and, the horse being smoothly shod, it was almost impossible to drive over it. The defendant company operated a single-track electric street railway along the south side of this public road. The driveway was north of the trolley track. After a car going in the same direction had passed the appellants they drove over onto the track to avoid the icy driveway. The tracks were of flat rails and were constructed with a view to their use by teams as well as by trolley cars. After traveling upon the track for the distance of about 500 feet, and before they had got beyond the icy part of the road, another car of the defendant company came 'towards them at a high rate of speed, ringing no gong and giving no signal. The motorman’s view of the track was interfered with,' for the window in front of him 'was closed and there was sweat upon it. The day was a very foggy one and the approaching car could not be seen for more than seventy or eighty feet, according to the testimony of the plaintiffs, and for a much less distance according to that of defendant’s witnesses. When the appellants saw the car approaching them they first made an effort to get onto the road by turning to the right, but were unable to do so on account of a ridge of ice on that side, and they then made an effort to turn to the left, when the team was struck and the injuries were sustained for which these actions were brought.

The plaintiffs had a right to use the track of the defendant company, subordinate, however, to its superior right to use it. The contributory negligence of which the court below pronounced them guilty was their leaving the driveway, when there was nothing to prevent them from traveling on it, and going on the tracks under the foggy condition of the morning, which prevented their seeing the approach of a car for more than seventy or eighty, feet. A jury could have fairly found that the icy condition of the driveway prevented the plaintiffs from traveling over it, but, even without any reason for leaving it, they were not trespassers in traveling upon the track. It was not negligence per se for them to be there: Thatcher v. Central Traction Co., 166 Pa. 66. If it had been a clear, bright day, it would not be pretended that the appellants would have been guilty of contributory negligence in going upon the track, and on this foggy day, though they could not see, they had a right to expect that some signal would be given them of an approaching car to enable them to get out of its way. It may or may not have been a prudent thing for them to leave the driveway and travel on the track, but as to this minds, can fairly differ. It. was absolutely impossible, or almost so, to proceed over the icy road, for the condition of which the appellee was responsible, and what more natural, when they found they could not proceed over the ice, than to turn to the track of the defendant company, constructed for the use of teams. The negligence of the appellee and the contributory negligence of the appellants were clearly for the jury, and the judgment is reversed with a venire facias de novo in each case.