Zirkman v. Philadelphia & West Chester Traction Co.
Zirkman v. Philadelphia & West Chester Traction Co.
Opinion of the Court
Opinion by
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
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.
Reference
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- Zirkman v. Philadelphia & West Chester Traction Company
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- Syllabus
- Negligence — Street railways — Roads—Obstruction of highway. In an action against a street railway company to recover the loss of a horse, a judgment on a verdict for plaintiff will be sustained where the evidence for plaintiff although contradicted, tends to show that the defendant, at the place of the accident piled ballast three or four feet beyond its tracks on the public highway, that the highway at this point was hardly wide enough for two teams to pass, and that plaintiff in permitting a heavily loaded team to pass, was compelled to drive upon the stones, and that the loose stones caused his horse to' fall and sustain the injuries for which the suit was brought.