Supreme Court of Pennsylvania, 1907

Emmel v. Pittsburg Railways Co.

Emmel v. Pittsburg Railways Co.
Supreme Court of Pennsylvania · Decided January 7, 1907 · Brown, Eell, Elkin, Mestrezat, Mitchell, Stewart
216 Pa. 541; 65 A. 1083; 1907 Pa. LEXIS 859

Emmel v. Pittsburg Railways Co.

Opinion of the Court

Opinion by

Mr. Justice Stewart,

The negligence here complained of was the alleged excessive and dangerous rate of speed at which the car that collided with the wagon plaintiff was driving, was being run. Without any way of determining by accurate measurement of time and distance what the rate of speed was, the evidence with respect to it rested on the observation of bystanders who saw the car approach. It is quite clear that the car which caused the accident was the one going toward Pittsburg; it was the first to reach the point on Isabella street where plaintiff attempted to cross over. When plaintiff first saw this car, before he attempted the crossing, it was, he says, “ a good distance on the other side of Robinson street,” while the car coming from the opposite direction was about 300 feet up on the bridge.” The shorter distance was in favor of the car that collided, but the difference could at best be only a few feet, say twice the length of an ordinary car. Appellant’s argument proceeds on the assumption, that it appears from the evidence of plaintiff’s witnesses that the car coming from Pittsburg was moving at a slow and safe rate of speed; and it is argued that since both cars, at the point of time when plaintiff started to cross the tracks, were about equidistant from the point of accident, and arrived there at almost the same moment, their rate of speed must have been the same. We fail to find warrant for this assumption. But two of plaintiff’s witnesses testify to the rate of speed of the car which caused the accident. One of these, who.testified to an experience that should have qualified him to speak on such matters with a greater degree of accuracy than the ordinary witness, says that he observed this car from the time it appeared at Robinson street; that it was moving at the rate of twenty-six or twenty-seven miles an hour, until within ten or twelve feet of the place of the accident, when attempt was made to stop it. The other, admittedly without *543experience, testified that in his judgment the speed was ten or fifteen miles an. hour. Each of these witnesses, and a third, testified with reference to the rate of speed of the other car. The first was asked as to its speed when plaintiff’s wagon was knocked against it by the other car, and replied that it was moving very slowly. The second said that it was moving at about half the speed of the other car; that “ the motorman in coming down that steep grade couldn’t slacken up quite enough.” The third says, speaking of the motorman in charge: The man tried to stop; he was moving very slowly.”- This evidence, relating as it does to the speed of this car at a time when the collision of the other car with plaintiff’s wagon, if not inevitable, must have seemed at least likely to happen, and when the motorman in charge was evidently endeavoring to control his car so as not to be involved in it, furnishes no support for appellant’s contention. • Eor all that appears from it, the speed of the car up to that point may have been fully equal to the speed of the other car. What that speed was, and whether it was negligence to maintain it under the circumstances of the case, was a question for the jury. Whether plaintiff was negligent in attempting to cross the tracks with approaching cars each about 300 feet distant, was also a question for the jury. Both issues were found for the plaintiff, under very full and careful instructions as to the law. The assignments of error relate to the refusal of the court to direct a nonsuit. They are overruled.

Judgment affirmed.

January 7, 1907:

Case-law data current through December 31, 2025. Source: CourtListener bulk data.