Hobel v. Mahoning & Shenango Railway & Light Co.

Per Curiam, The error assigned is that the court refused to enter judgment for the defendant non obstante veredicto and the only question to be considered is whether there was any testimony on behalf of the plaintiff, which, if believed, entitled him to a verdict. The Act of April 22, 1905, P. L. 286, which gives the court authority to enter judgment non obstante veredicto when a request for binding instructions has been declined at the trial makes no radical innovation on the settled line of distinction between the power of the court and of the jury. Judgment cannot be entered against the verdict when there is a conflict of evidence on material facts or when for any reason there could not have been a binding instruction for the defendant: Dalmas v. Kemble, 215 Pa. 410. When this case was here before, see 229 Pa. 507, it was said that on the question of the negligence of the defendant and the contributory negligence of the plaintiff, there was evidence sufficient to take the case to the jury. On the second trial the testimony for the plaintiff was substantially the same as at the first. It tended to show that as the plaintiff approached a right angle crossing of the tracks of the defendant’s electric road on a city street, he stopped at the house line and looked and listened and continued to look and listen as he advanced. When his horses were in the act of stepping on the tracks he first 452 gawa car 150 feet from him, running at a very rapid rate and of the approach of which no notice had been given by bell or gong, that no effort was made by the motorman .to stop the car or to reduce its speed until it was within ten feet of him. This made out a prima facie case. The judgment is affirmed.