Hanlon v. Philadelphia & West Chester Traction Co.

Opinion by Oblady, J., The plaintiff’s farm was bisected by a public road, on one [225] side of which is located the defendants’ traction railway on enclosed land of its own. There was a breach in the fence of the trolley company to enable the plaintiff to have access to his fields, which were arranged so that on the south side, immediately opposite the breach in the defendants’ fence, there was a gate, opening into a feeding lot, and on the north side a pair of Joars opening into a field in which a herd of forty dairy cows were kept. The plaintiff’s custom, which was well known to the motorman, was to have a load of fodder hauled into the feeding lot near to the gate, and then to let the cows into that lot from the one across the public and trolley road. On November 20, about 9 a. m., a load of fodder was hauled to the feeding lot; the "plaintiff opened the gate of that lot, then walked across the track of the defendant, and after first looking in both directions and not seeing a car, he let down the bars of the other lot, when the cows, having a full view of the fodder, ’became restive and attempted to get past him. At this juncture the plaintiff, seeing a car approaching at a rapid rate of speed, endeavored to prevent the cows from getting out of the field ; in this effort he did not wholly succeed, some crossed the track in safety, but one bolted behind him ; was struck by the car and was so injured that it was necessary to kill her. This action was brought to recover damages for the loss, and a verdict was returned in favor of the plaintiff. The sole assignment of error is to the refusal of the court below to give binding instructions to find for the defendant. There is no material conflict as to the important facts of the case. The accident occurred in broad daylight, in an open country, on a straight track, where the motorman had a clear view of the plaintiff for over 200 yards; saw him waving his arms and brandishing a stick in attempting to restrain the cows, and further, that the plaintiff’s efforts were not successful, as some of the cows escaped him and passed into the feeding lot. There is no evidence of contributory negligence on the part of the plaintiff. To demand of him a higher measure of duty than was observed would be practically to prevent his use of the crossing at all. The motorman had not only a full view of all the circumstances but complete control over the directing agencies. He slowed up his car, and voluntarily approached the crossing in such a way as to cause the collision. The degree [226] of care to be exercised must necessarily vary with the circumstances, and therefore no unbending rule can be laid down. Under the facts as he describes them it was reasonably to be expected that One or more of the cows would break by the plaintiff to get to the fodder across the track. He was bound to approach the crossing ata perfectly manageable rate of speed, and what he was bound to do the plaintiff had the right to presume would be done. The measure of precaution taken or omitted by'the plaintiff cannot be properly estimated without allowing him the full benefit of this presumption: Reeves v. Railroad Co., 80 Pa. 454. He was bound to be regardful of his duty, to look constantly ahead of him, and to be on the alert to avoid just what happened: Jones v. Traction Co., 201 Pa. 344. It is only in clear cases where neither the facts nor the inferences to be drawn from them are in doubt, that the court is justified in withdrawing the question of negligence from the jury. Kroesen v. Ry. Co., 198 Pa. 26; Cohen v. Phila. & Reading Ry. Co., 211 Pa. 227, The case of Cromley v. Penna. R. R. Co., 211 Pa. 429. Harman v. Traction Co., 200 Pa. 311, on which the appellant relies, is distinctly different from this one. In that one the movement of the mules did not indicate to the motorman that they were uncontrollable, and there was nothing to indicate that he was unable to check them ; therefore there was nothing calling for increased vigilance.” In this case the motorman saw that the plaintiff was doing his best, as he states it, and failing to head off the forty hungry and impatient cows from getting over the track to their morning feed. The whole situation clearly indicated that the cows would not clear the track as the cars approached the crossing, and that reasonable care adapted to the emergency would have avoided the accident. Under the circumstances the case was properly submitted to the jury. The judgment is affirmed.