Goshorn v. Smith

Mr Justice Mercur delivered the opinion of the court, March 8th 1880. This is an action on the case. It was brought to recover damages for injury sustained by the defendant in error by reason of the alleged negligent conduct of the plaintiff in error. To maintain the action the evidence must show' the injury to have resulted from the negligence of the latter, without any .negligence of the former contributing thereto: Waters v. Wing, 9 P. F. Smith 211. It is not necessary to defeat a recovery that the complainant should have [438] been equally as guilty of negligence as the opposite party. And concurring negligence of the defendant in error in causing the injury is a complete defence: Catawissa Railroad Co. v. Armstrong, 13 Wright 186. In case of contributing acts of negligence the law will not determine whose wrong doing mostly caused the injury: Little Schuylkill Navigation Co. v. Norton, 12 Harris 465. This rule extends to the case where one is killed and the action is brought by surviving relatives: Gerety v. Philadelphia, Wilmington & Baltimore Railroad Co., 31 P. F. Smith 274. Accidents may occur, and injuries may be sustained through negligence, for which the law gives no redress in damages. Negligence may be said to be the absence of that care which a prudent man would naturally exercise under the circumstances: Catawissa Railroad Co. v. Armstrong, supra. Where there is conflicting evidence as to the acts bearing on the question of negligence it is for the jury. So if there be no doubt as to the acts committed, yet if there be substantial doubts as to the inferences to be drawn from those acts they should be submitted to the jury: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58; McKee v. Bidwell, 24 Id. 218. But whether a given state of facts admitted or proved, constitutes negligence is generally a question of law to be declared by the court: Catawissa Railroad Co. v. Armstrong, supra; Philadelphia, Wilmington & Baltimore Railroad Co. v. Stinger, 28 P. F. Smith 219; Gerety v. Railroad Co., supra. Where facts have not been shown, from which negligence may reasonably be inferred, they should not be submitted to a jury to infer, arbitrarily and without evidence, that there was negligence: Philadelphia & Reading Railroad Co. v. Yerger et al., 23 P. F. Smith 121; Same v. Heil, 5 W. N. C. 91; Clark v. Philadelphia & Reading Railroad Co., Id. 119; Pennsylvania Railroad Co. v. Fries, Id. 545. This accident occurred in Lancaster avenue, where there are two street railway tracks. There was a block of cars on the right hand track leading toward the centre of the city, occasioned by the off horse in the front car balking. The defendant in error had hold of the head of the near horse for the purpose of starting the horses. The wagon of the plaintiff in error, containing four men, and drawn by one horse, was moving in the same direction on the left hand track. The space between the two tracks was some three or four feet in width. Just as the wagon was passing this car, the horses attached thereto started, and to protect himself against probable injury from the horse which he was holding, the defendant in error stepped back suddenly and was struck by, or came in contact with, the wagon. He testified, “ I don’t think I jumped back; I stepped back just far enough to get clear of the ear. I stepped back one step, I think.” He further testified, “ the car [439] riage struck me ; both wheels went over me; the shaft struck me first.” His wife testified: “As he started the horse jumped towards him and knocked him back.” Kimble, another witness called by-defendant in error, swore : “ Mr. Smith stepped back from the horse’s head because the horse came out of his place.” Coomy testified “ if Smith had not stepped out of the way, the horse would have stepped on him, and the body of the car would' have struck him.” The other witnesses called by the defendant did not state the facts as fully, but their testimony did not conflict with that which we have quoted. The plaintiff in error testified when “ he (Smith) sprang back, he struck the rear of the seat on which the driver was seated.” Mr. Asch, a witness of plaintiff in error, testified : “ This man jumped back and struck the carriage behind the driver’s seat.” Thus all the evidence shows the injury was caused by reason of the defendant suddenly stepping or jumping back, whereby he came in collision with the wagon. The only conflict of evidence was as to the speed with which the wagon was moving. The witnesses on the part of the defendant in error thought it was seven or eight miles an hour; those on the part of the plaintiff in error from two to three miles an hour. We, however, are not able to see that the injury resulted from the greatest speed named. If the wagon had been moving at half that rate, and been in the same relative position with the car, the action of the defendant in error would have resulted in his injury. The wagon was moving on the track, where it had a legal right to be. That track was wholly free and unobstructed; the wagon did not leave that track and go nearer to the car, or to the defendant in error. The driver of the wagon had no reason to suppose that any one would suddenly move so near the track occupied by the wagon as to come in contact with it. If those occupying the wagon had no reason to anticipate such action, it is very clear they were not guilty of any negligence in not guarding against it. Conceding that the action of the defendant was excusable to save himself from being injured by the horse attached to the car, so that he may not have been liable to an action in case he had injured the plaintiff in error by this sudden and unexpected movement, yet it by no means follows that he has a right of action for injuries which he thereby sustained. The case rests solely on the alleged negligence of the plaintiff in error. A careful examination of the whole case does not show evidence sufficient to justify the court in submitting the question of the negligence of the plaintiff in error to the jury. The learned judge therefore erred in not affirming the point covered by the fourth assignment. Judgment reversed.