Ciszkowicz v. Scranton Railway Co.

Superior Court of Pennsylvania
Ciszkowicz v. Scranton Railway Co., 70 Pa. Super. 352 (1918)
1918 Pa. Super. LEXIS 249
Head, Henderson, Kephart, Orlady, Porter, Trexler, Williams

Ciszkowicz v. Scranton Railway Co.

Opinion of the Court

Opinion by

Kephart, J.,

After reviewing the testimony, we are unable to understand how the court below could have done otherwise than direct a verdict for the defendant. If this record does not present a clear case of contributory negligence, then there scarcely could be any such record. The court below, in directing judgment for the defendant, sets forth the facts as developed by the appellant and the law applicable thereto. We can add nothing to what is there so well considered. Counsel, with some earnestness, urge that the appellant should not be convicted of contributory negligence for the reason that when he attempted to clear the tracks the wheels of his wagon slipped along the rails and refused to leave. While making this effort, his wagon was struck. This was not the cause of the accident and the appellant submits no evidence of any' extended effort to get the wheels from the tracks. He does not know, nor does he have any idea, how far they slipped; “the wheel was on the rail and it was sliding.” “I could not tell whether it slid six inches or not; there was no time.” His statement shows that his horse had scarcely cleared the track when his wagon was struck, and as he was riding with one wheel outside of the tracks it indicated that the slipping had nothing whatever to do with the accident. Moreover, he had a clear view of the oncoming car for eleven hundred and fifty feet. To re-. cover under such circumstances, there must be evidence which plainly shows that the accident developed from conditions that the appellant could not foresee or control. These conditions must be of such character as to appear reasonable and likely to occur when all the circumstances surrounding them are taken into consideration. In the present case, the condition of the rail and the adjoining brick, the width of the wagon tire and the depth of the flange below the topmost part of the rail and *356adjoining brick are not described, so that a likelihood to pinch or slip might naturally result from the wheel being in the groove. It was incumbent on the plaintiff to make a plain showing in this regard. While it might happen that wheels may slip for a short distance, considering the space that separated the wagon and the car, the slipping was not likely to continue during all the time the appellant had to leave the tracks. It is against common experience; and if it does, the details which make it possible should plainly appear.

The judgment of the court below is affirmed.

Reference

Full Case Name
Ciszkowicz v. Scranton Railway Company
Cited By
3 cases
Status
Published
Syllabus
Negligence — Street railways — Head-on collision between car and wagon. In an action against a street railway company to recover damages for personal injuries, a judgment will be entered for defendant n. o. v., where the evidence shows that the plaintiff was driving a one-horse wagon on the track of defendant, that he had a clear view of an on-coming car for 1,150 feet, that in turning off the track, his horse had scarcely cleared the track when his wagon was struck head-on by the car, and that plaintiff’s claim that his wheels slipped along the rails, and refused to leave, is not supported by any proof as to how far they slipped nor as to the condition of the rail and adjoining track, the width of the wagon tire, and depth of the flange below the topmost part of the rail and the adjoining track. In such a case while it might happen that wheels may slip for a short distance, considering the space that separated the wagon and the car, the slipping was not likely to continue during all the time the plaintiff had to leave the tracks.