Philad. Traction Co. v. Bernheimer

Opinion, Me. Chief Justice Paxson ; The horse of the plaintiff below was hitched to an awning post on the south side of Market street, about twenty-two feet east of Fourth street. The plaintiff, while standing on the pavement, with some boxes between the horse and himself, untied the hitching strap. Just then a cable car came along and the' ringing of the bell alarmed his horse and it broke away from him. He testified: “ My horse pulled strap from my hand. There were some boxes in the way, and I could not get around to reach him, and cable car struck him, and I ran down Market street after my horse and wagon. The ringing of the bell started the horse......I think the car could [619] have been stopped before it touched the horse. When the horse reached the track the cable car was about eighteen to twenty feet off. The gripman could have stopped the car and seen the horse.” No other witness appears to have been called. We may safely conclude from his own statement that the plaintiff was not a horseman. No one accustomed to such animals would ever think of unhitching his horse in a crowded street, with a pile of boxes between the horse and himself,' which obliged him to go around them before he could take hold of it. Had the boxes not been in his way he could have held his horse when frightened by the bell. It was an act of gross negligence to unhitch it in the manner he did, and had the point been raised upon the trial, should have prevented a recovery. We decide the case, however, upon other grounds. There was no evidence of negligence on the part of the company. It was not negligence to ring the bell as the car approached Fourth street. > It would have been negligence not to have done so. Was it negligence in the gripman not to stop the car in time to prevent a collision ? Upon this point there was no sufficient evidence to submit to the jury. It is true the plaintiff said, “ I think the car could have been stopped.” Afterward he was more positive and said, “ The gripman could have stopped the car.” This was a mere opinion, based upon no knowledge or experience in handling or working cable cars. In Fischer v. The Ferry Company, 124 Pa. 154, it was said of an inexpert witness, who had testified that the pilot of a steamboat might have changed its course in time to have avoided a collision, “ He was a mere passenger; he knew nothing of navigation, or the handling of a steamboat, and it would be as rational to call a cobbler as an expert in medical science, as to permit a jury to render a verdict upon such testimony as this.” The plaintiff in this case knew nothing of handling or stopping a cable car ; he did not even know how to manage his horse, and it would be unjust to let this question of fact go to the jury upon such testimony. The gripman was not bound to know that the horse would run against his car. It was only eighteen feet from the car when it reached the track, and the car would move that eighteen feet in less than a second of time. [620] The assignments of error are all sustained. There was no question of negligence to submit to the jury. Judgment reversed.