[512]*512Opinion,
Mr. Justice Clark :
The plaintiff in this ease, Helen L. Thomas, concedes that if the conductor or driver of this car could not have stopped it in time to avert the accident he was guilty of no negligence ; but her contention is, that if he could have done so, and did not, he was negligent, and she is entitled to recover. The only negligent act complained of, therefore, .is that the conductor did not stop the car before the collision occurred.
The plaintiff testifies that she was going down Main street on one side of the track, and that her intention was to cross the track, and go up the same street on the other side. In doing this she would necessarily be obliged to pass on, over, and off the track in the form of a semi-circle. The driver might well have supposed, in the first instance, that she was merely turning on the. track in front of him; he could only discover her full intention when she had gone far enough to indicate her purpose to cross over. She says that at the time she undertook to cross, the car was thirty feet or more distant from her, and she thought there was time to cross. Mr. Wilson, the plaintiff’s witness, says he was standing at the corner of Main and DeKalb streets ; that just as the plaintiff’s horse was about to step on the track he saw the car; that the conductor was at the moment looking down DeKalb street, presumably for passengers, and that he called to him, “ Hold on, or you will run into that lady’s carriage.” Whether the driver heard him or not he does not know; the car was twenty or twenty-five feet off at the time, and he did not think she could cross. He says the driver applied the brakes and swung his horses to the left, around outside of the track, to prevent a collision, but the tongue struck the phaeton, and the horses were thrown against the wheels, producing the injury complained of. On cross-examination, he says that when he first noticed the car “ it was pretty near right on her; her horse had one.foot just about to step on the track,” but he thought the driver had time enough to stop. Mr. Fox testifies that when he first saw the car it was above DeKalb street, in front of Baker’s drug store, and that from the time he first saw it the driver had time enough to stop before he got to the phaeton. These witnesses, however, had no knowledge or experience whatever of the handling of cars or of operating the [513]*513brakes, and it must be conceded that, as they testify to no specific act of negligence, their mere opinion as to whether or not the driver might or might not have been able to stop the ear in time, on a descending grade, was of little importance : Phila. Traction Co. v. Bernheimer, 125 Pa. 615. Mr. Holland says, if the driver had not looked down DeKalb street, he does “ not suppose that the accident would have happened.” This is substantially all of the testimony on part of the plaintiff bearing upon the question of the defendant’s negligence, and upon this meagre and unsatisfactory proof the court submitted that question to the jury. Mathias was both driver and conductor of the car, and when he was crossing DeKalb there was no one in front of him on the track, and no one offering to cross. Under these circumstances, it was certainly no act of negligence to observe whether there were passengers desiring to board the cars on that crossing. There is no evidence that his attention was unnecessarily, or for any unreasonable time, withdrawn from a view of the track. Nor is there any evidence that he failed to apply the brakes promptly and energetically when the exigency arose. No witness has suggested that the driver did anything which he should not have done, or that he failed to do anything which he could have done, to avert the accident. On the contrary, the proof on both sides is consistent, clear, and positive that the brakes were applied at once. Mr. Berndt says he heard the elink of the brake, and noticed that the driver put on all his force. Whatever may have been the distance between the car and the phaeton when Mrs. Thomas undertook to cross the track, (and this is variously stated by the witnesses,) it is plain that, notwithstanding the efforts of the driver to stop the car, the collision occurred. Upon this state of facts we are of opinion that the court erred in submitting the question of the defendant’s negligence to the jury; there was not, we think, sufficient evidence to justify an inference of the negligent act alleged.
But, assuming that the conductor, by an ordinary or an extraordinary effort, could have stopped his car in time to prevent the injury, a question still arises as to whether or not the plaintiff was not also guilty of negligence in attempting to cross the track in front of a moving car. The car was confined in its course to the rails ; it could be turned neither to [514]*514the right nor the left; it was running at the usual rate of four or five miles an hour, upon a descending grade, and could not be stopped as readily or as quickly as her horse, which was moving at a slow walk. She knew that a car was coming, and was near, for she admits that she was warned by the bells; but the phaeton was curtained, and the curtains were down, and she could not see the car until her horse was turned upon the track. The car she says was thirty feet distant, and she had reason to think there was no risk, and that she had time to cross. She would seem to have taken the chances, and assumed the risk.
Assuming that it was the duty of the driver, in order to prevent a collision, to use ordinary and reasonable efforts to stop the car, the company, upon the facts of this case, was, we think, only responsible, if responsible at all, for wanton neglect, of which there is not the slightest proof. The plaintiff was without doubt, according to the testimony of her own witnesses, guilty of negligence in driving her phaeton right in front of a moving car. She had a right to drive on the public streets, and at any point over the company’s tracks, for they were laid in the street; but in doing so she was held to the exercise of ordinary care. The company, also, had a right to run their cars upon their tracks longitudinally with the street, at such reasonable rate of speed as was consistent with the safety of the traveling public ; indeed, in a certain sense, the company had precedence over the ordinary travel, for, their cars being confined to the track, other vehicles must of necessity turn out, and give the cars opportunity to pass. The plaintiff knew that car’s were passing and repassing upon these tracks, and before undertaking to cross she was bound to look and see. that no ear was coming with which she might collide. She cannot be excused from this duty because the curtains were down, and she could not see; that very fact called for a more careful observation, especially as she had been warned by the bells. The distance she was in front of the car, at the time, is variously stated by the witnesses, but the whole current of the testimony shows that, although the brakes were promptly applied, and the speed of the car checked, yet the collision occurred.
When the plaintiff’s case was closed, the defendant moved [515]*515for a compulsory nonsuit, and the court refused the motion. Whilst this action of the court is not, and could not be, assigned for error, yet the views expressed by the learned judge of the court below, as the ground of refusal, illustrate in the clearest manner the error into which he appears to have fallen in his charge to the jury.
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[512]*512Opinion,
Mr. Justice Clark :
The plaintiff in this ease, Helen L. Thomas, concedes that if the conductor or driver of this car could not have stopped it in time to avert the accident he was guilty of no negligence ; but her contention is, that if he could have done so, and did not, he was negligent, and she is entitled to recover. The only negligent act complained of, therefore, .is that the conductor did not stop the car before the collision occurred.
The plaintiff testifies that she was going down Main street on one side of the track, and that her intention was to cross the track, and go up the same street on the other side. In doing this she would necessarily be obliged to pass on, over, and off the track in the form of a semi-circle. The driver might well have supposed, in the first instance, that she was merely turning on the. track in front of him; he could only discover her full intention when she had gone far enough to indicate her purpose to cross over. She says that at the time she undertook to cross, the car was thirty feet or more distant from her, and she thought there was time to cross. Mr. Wilson, the plaintiff’s witness, says he was standing at the corner of Main and DeKalb streets ; that just as the plaintiff’s horse was about to step on the track he saw the car; that the conductor was at the moment looking down DeKalb street, presumably for passengers, and that he called to him, “ Hold on, or you will run into that lady’s carriage.” Whether the driver heard him or not he does not know; the car was twenty or twenty-five feet off at the time, and he did not think she could cross. He says the driver applied the brakes and swung his horses to the left, around outside of the track, to prevent a collision, but the tongue struck the phaeton, and the horses were thrown against the wheels, producing the injury complained of. On cross-examination, he says that when he first noticed the car “ it was pretty near right on her; her horse had one.foot just about to step on the track,” but he thought the driver had time enough to stop. Mr. Fox testifies that when he first saw the car it was above DeKalb street, in front of Baker’s drug store, and that from the time he first saw it the driver had time enough to stop before he got to the phaeton. These witnesses, however, had no knowledge or experience whatever of the handling of cars or of operating the [513]*513brakes, and it must be conceded that, as they testify to no specific act of negligence, their mere opinion as to whether or not the driver might or might not have been able to stop the ear in time, on a descending grade, was of little importance : Phila. Traction Co. v. Bernheimer, 125 Pa. 615. Mr. Holland says, if the driver had not looked down DeKalb street, he does “ not suppose that the accident would have happened.” This is substantially all of the testimony on part of the plaintiff bearing upon the question of the defendant’s negligence, and upon this meagre and unsatisfactory proof the court submitted that question to the jury. Mathias was both driver and conductor of the car, and when he was crossing DeKalb there was no one in front of him on the track, and no one offering to cross. Under these circumstances, it was certainly no act of negligence to observe whether there were passengers desiring to board the cars on that crossing. There is no evidence that his attention was unnecessarily, or for any unreasonable time, withdrawn from a view of the track. Nor is there any evidence that he failed to apply the brakes promptly and energetically when the exigency arose. No witness has suggested that the driver did anything which he should not have done, or that he failed to do anything which he could have done, to avert the accident. On the contrary, the proof on both sides is consistent, clear, and positive that the brakes were applied at once. Mr. Berndt says he heard the elink of the brake, and noticed that the driver put on all his force. Whatever may have been the distance between the car and the phaeton when Mrs. Thomas undertook to cross the track, (and this is variously stated by the witnesses,) it is plain that, notwithstanding the efforts of the driver to stop the car, the collision occurred. Upon this state of facts we are of opinion that the court erred in submitting the question of the defendant’s negligence to the jury; there was not, we think, sufficient evidence to justify an inference of the negligent act alleged.
But, assuming that the conductor, by an ordinary or an extraordinary effort, could have stopped his car in time to prevent the injury, a question still arises as to whether or not the plaintiff was not also guilty of negligence in attempting to cross the track in front of a moving car. The car was confined in its course to the rails ; it could be turned neither to [514]*514the right nor the left; it was running at the usual rate of four or five miles an hour, upon a descending grade, and could not be stopped as readily or as quickly as her horse, which was moving at a slow walk. She knew that a car was coming, and was near, for she admits that she was warned by the bells; but the phaeton was curtained, and the curtains were down, and she could not see the car until her horse was turned upon the track. The car she says was thirty feet distant, and she had reason to think there was no risk, and that she had time to cross. She would seem to have taken the chances, and assumed the risk.
Assuming that it was the duty of the driver, in order to prevent a collision, to use ordinary and reasonable efforts to stop the car, the company, upon the facts of this case, was, we think, only responsible, if responsible at all, for wanton neglect, of which there is not the slightest proof. The plaintiff was without doubt, according to the testimony of her own witnesses, guilty of negligence in driving her phaeton right in front of a moving car. She had a right to drive on the public streets, and at any point over the company’s tracks, for they were laid in the street; but in doing so she was held to the exercise of ordinary care. The company, also, had a right to run their cars upon their tracks longitudinally with the street, at such reasonable rate of speed as was consistent with the safety of the traveling public ; indeed, in a certain sense, the company had precedence over the ordinary travel, for, their cars being confined to the track, other vehicles must of necessity turn out, and give the cars opportunity to pass. The plaintiff knew that car’s were passing and repassing upon these tracks, and before undertaking to cross she was bound to look and see. that no ear was coming with which she might collide. She cannot be excused from this duty because the curtains were down, and she could not see; that very fact called for a more careful observation, especially as she had been warned by the bells. The distance she was in front of the car, at the time, is variously stated by the witnesses, but the whole current of the testimony shows that, although the brakes were promptly applied, and the speed of the car checked, yet the collision occurred.
When the plaintiff’s case was closed, the defendant moved [515]*515for a compulsory nonsuit, and the court refused the motion. Whilst this action of the court is not, and could not be, assigned for error, yet the views expressed by the learned judge of the court below, as the ground of refusal, illustrate in the clearest manner the error into which he appears to have fallen in his charge to the jury. He says: “Whilst it is undoubtedly true that contributory negligence on the part of the plaintiff would defeat a recovery, as I understand the law, although she may have been negligent in her manner of entering upon the tracks of this railroad company, yet if the driver of the car, when he was a sufficient distance from her to have averted the accident, could have done it, it was his duty to do so. Although she may have been an original trespasser in going upon the track, and have been negligent in crossing in the manner she did, it was his duty, if he could have done so, to have averted this accident. If he saw her about to cross, and did not take proper measures to stop the speed of his car, if it was through his neglect, after he discovered that she was upon the track, that the accident occurred, she would be entitled to recover.” The learned judge, it is true, very properly charged the jury that if the injury was caused by the negligence of Mrs. Thomas, or if her negligence contributed in any manner to it, she could not recover; but this instruction seems, in each instance, to have been qualified by the statement that, although, by her failure to look, she may have placed herself in a place of manifest danger in front of the car, yet it was the duty of the driver, observing the situation, to stop the car, and if by any means he could have done so, and did not, the company, notwithstanding her negligence, was responsible in damages for the injury. “ Although in this case,” says the learned judge in his charge, “you should find that this lady may have attempted to cross this track at what might have appeared to be an unsafe distance, yet if, being in that position, the driver of the street car could have seen her, or did see her, and coirld have stopped his car in time to avert the accident, it was his duty to have done so; and, if he did not, his company would be liable for damages. Therefore, as a result of this, if you should find that this accident was occasioned by the negligence of Mrs. Thomas, she cannot recover, no matter to what extent that negligence contributed to the accident; [516]*516if it contributed in any manner she cannot recover.” “But,” he continues, “ if it was occasioned by the failure of this street car driver to stop his car, if he could have done so, then she could recover, and the company is liable.”
It is plain, we think, that Mrs. Thomas, by her own negligent act, had no right to impose extraordinary duty or obligation upon the defendant. If, instead of a street car, this had been a train of railroackcars, running at the usual rate of speed, and approaching a road crossing, with the customary warnings and signals, it would certainly not be pretended that this lady would have been justified in going upon the track with her phaeton, if in case of injury, she could afterwards show that the train might somehow have been stopped in time to prevent the injury. This would dispense with the whole doctrine of contributory negligence, as declared in the decisions of this court. If the plaintiff’s negligence contributed to the injury, under the facts of this case, she cannot recover; this is too well established in Pennsylvania to admit of any question, or to require the citation of authorities.'
In establishing the negligence of the company, the burden of proof is upon the plaintiff, and we think she has failed in establishing a state of facts from which negligence could be fairly inferred. And, although she is not required to prove the absence of contributory negligence in the first instance, it is incumbent upon her to show a case clear of contributory negligence on her part, and this she has not done. Her own testimony, taken with that of her own witnesses, clearly convicts her of negligence, which was the principal, if not the sole, cause of the injury.
The judgment is reversed.