Zirkman v. Philadelphia & West Chester Traction Co.

Superior Court of Pennsylvania

Zirkman v. Philadelphia & West Chester Traction Co.

33 Pa. Super. 85, 1907 Pa. Super. LEXIS 246

CourtSuperior Court of Pennsylvania

DecidedFebruary 25, 1907

DocketAppeal, No. 95

StatusPublished

Cited by1 cases

This text of 33 Pa. Super. 85 (Zirkman v. Philadelphia & West Chester Traction Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zirkman v. Philadelphia & West Chester Traction Co., 33 Pa. Super. 85, 1907 Pa. Super. LEXIS 246 (Pa. Ct. App. 1907).

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Opinion

Opinion by

Orlady, J.,

The defendant operated a trolley road between Philadelphia and West Chester, which occupied part of the public highway. Its roadbed was so constructed as to raise its tracks about nine inches above the surface of the highway, and from the outer edge of its tracks there was a gradual slope down to the level of the road used by the traveling public, so as to leave a highway accessible to the traveling public, at the place where the accident happened, only about eight or nine feet in width, as shown by the plaintiff, but about eighteen feet in width as testified to by the defendant’s witnesses. The authority for superimposing upon a public highway a construction of such width and elevation as to withdraw from public use that niuch of the highway, does not appear; and it is not necessary to pass upon that phase of the case in disposing of the assignments of error in this record. The appellant urged, in a point presented to the court for instruction to the jury, that: “ There is no evidence of negligence by the defendant in this case, which caused the accident,” which was refused, and the question of the defendant’s negligence was submitted to the jury in a fair and adequate manner. The plaintiff testified that the trolley roadbed was eight to ten feet wide, so as to make the roadway for public travel very narrow, hardly wide enough for two teams to jiass, and that the company for a long distance along its line had dumped gravel or loose ballast by the side and beyond its tracks a space of three or four feet into the highway proper, and of a height of two or three feet. To permit a heavily loaded wagon to pass him he was obliged to [87]*87force his horse and one side of his wagon upon the pile of ballast, and in getting the horse from the pile of loose stone the accident was caused by the loose stone sliding and rolling further into the road.

The location and character of the pile of ballast, and whether it was an obstruction to public travel, were facts depending upon conflicting oral testimony, which was properly submitted to the jury.

The judgment is affirmed.

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Opinion by

Orlady, J.,

The defendant operated a trolley road between Philadelphia and West Chester, which occupied part of the public highway. Its roadbed was so constructed as to raise its tracks about nine inches above the surface of the highway, and from the outer edge of its tracks there was a gradual slope down to the level of the road used by the traveling public, so as to leave a highway accessible to the traveling public, at the place where the accident happened, only about eight or nine feet in width, as shown by the plaintiff, but about eighteen feet in width as testified to by the defendant’s witnesses. The authority for superimposing upon a public highway a construction of such width and elevation as to withdraw from public use that niuch of the highway, does not appear; and it is not necessary to pass upon that phase of the case in disposing of the assignments of error in this record. The appellant urged, in a point presented to the court for instruction to the jury, that: “ There is no evidence of negligence by the defendant in this case, which caused the accident,” which was refused, and the question of the defendant’s negligence was submitted to the jury in a fair and adequate manner. The plaintiff testified that the trolley roadbed was eight to ten feet wide, so as to make the roadway for public travel very narrow, hardly wide enough for two teams to jiass, and that the company for a long distance along its line had dumped gravel or loose ballast by the side and beyond its tracks a space of three or four feet into the highway proper, and of a height of two or three feet. To permit a heavily loaded wagon to pass him he was obliged to [87]*87force his horse and one side of his wagon upon the pile of ballast, and in getting the horse from the pile of loose stone the accident was caused by the loose stone sliding and rolling further into the road.

The location and character of the pile of ballast, and whether it was an obstruction to public travel, were facts depending upon conflicting oral testimony, which was properly submitted to the jury.

The judgment is affirmed.

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33 Pa. Super. 85, 1907 Pa. Super. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zirkman-v-philadelphia-west-chester-traction-co-pasuperct-1907.

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