Zeaman v. Philadelphia Rapid Transit Co.

Opinion by Henderson, J., The refusal of the court to give binding instructions for the defendant or to enter judgment non obstante veredicto, is the error assigned by the appellant. The plaintiff’s son was a passenger on a north bound car on Frankford avenue in Philadelphia at about eleven o’clock on the night of September 8, 1912. He was sitting on the left side of the car. While thus riding he received an injury to his head from which he died the same night. It was charged in the statement of claim that the injury was the ,result of a collision of the car in which the young man was riding with a car of the defendant running southward on a parallel track. The evidence of a witness called for the plaintiff who was riding in the same car seated near the plaintiff’s son •and looking toward him at the time of the accident was -that it was a car going in the opposite direction on the other track that struck him, It is not disputed that two [465] cars were passing at the time and the evidence showed that a man on the other car on the side next to the plaintiff’s son ‘ sustained a severe injury to the head at the same time. One of the defendant’s witnesses was asleep in a seat in the same car and was awakened by a grating noise “such as running a stick along a grating.” The conductor of the southbound car heard “a loud rattle”; it was “just like as though an object was run up against the screen.” This noise he heard above that made by the running of the car. The motorman of the southbound car heard a noise which reminded him of a boy running along a paling fence with a stick. McCurdy, a passenger on the southbound car called for the defendant “heard a grating noise and I, of course, looked over quickly to that side of the car and saw this man who was seated in the seat ahead of me had his head cut open and he was bleeding.” This was not the plaintiff’s son but the man who was injured in the opposite car. There was evidence that the accident occurred on a curve and that new and larger cars which had been in use for some time on this line could not pass at the curve but that when a car approached the curve at a time when another car was making the turn it was stopped until the other car had passed the curve. That an accident occurred which caused the death of a passenger in one of these cars and injured a passenger on the other car is conceded and there is abundant evidence from which the jury might conclude that these cars came in contact in some manner which caused the injury complained of. We have not the opportunity which was afforded the court and jury to ascertain all the facts as developed at the trial for some of the testimony which may have been important was illustrated or demonstrated by the witnesses and the jurors were given an opportunity with the consent of the counsel and court to inspect a car of the same type as those used on Frankford avenue at the time of the accident. It was made to appear, therefore, prima facie that-the plaintiff’s son was killed while seat [466] ed in a railway car of the defendant by a collision with another car running in the opposite direction on an adjoining track. Under such circumstances the burden of proof was shifted to the defendant. It was an accident connected with the appliances of transportation and such accidents cast the burden on the defendant: Penna. R. R. Co. v. MacKinney, 124 Pa. 462; Cline v. Pittsburgh Rys. Co., 226 Pa. 586. The defendant denied through evidence which did not strongly impress the jury that there was a collision of the cars and offered evidence to show that the head of the young man who was killed projected from the car but the testimony is contradictory on this subject and by no means conclusive. Certain it is that with the description of the construction of the car and the position of the person who was injured presented it should not be said as a fact established beyond doubt that such was the case. Something occurred to the cars which attracted the attention of employees and passengers on each of them and which caused those in charge of the cars to stop them. A noise was made the description of which probably satisfied the jury that the cars were in collision and the testimony offered by the defense when considered in connection with that presented by the plaintiff does not incline us to hold that the injury is attributable to the contributory negligence of the person who was killed. There were contradictions in the testimony, inferences to be drawn from the statements of the witnesses, illustrated positions of the deceased and descriptions of the construction of the cars which were proper subjects for the consideration of the jury. No exception is taken to the charge and the jury was clearly and correctly instructed on the subject of contributory negligence. The jury has found the facts for the plaintiff and we think the judgment should not be disturbed. Judgment affirmed.