Jensen v. Philadelphia, Morton & Swarthmore Street Railway Co. , 24 Pa. Super. 4 ( 1903 )

Opinion by

Smith, J.,

The practice of presenting, as a point, an excerpt from an opinion of an appellate court, is not to be unreservedly commended, since a detached passage may give a misleading view of the essential point decided; and when such a passage is thus used, its presentation in a garbled form is to be unqualifiedly condemned. Here the plaintiff’s fifth point, embodied in the first assignment that “ a railway is negligent if it runs its cars at a rate of speed that will not permit its stopping within the distance covered by its own headlight,” while obviously derived from the opinion of the Supreme Court in Gilmore v. Federal St. &c. Pass. Railway Co., 153 Pa. 31, as obviously distorts the meaning of the language there employed. In that case Mr. Justice Heydrick, ¡delivering the opinion, after saying that the degree of care must necessarily vary with the circumstances, and therefore no unbending rule could be laid down, added, in the same sentence, “ but there is no difficulty in saying that it is negligence to run a car along a narrow and unlighted alley on a darle night at a rate of speed that will not permit its stoppage within the distance covered by its own headlight.” The words here italicized are omitted from the plaintiff’s point; the proposition embodied in the point is presented as a general and unbending rule; and the appellee’s argument aimed at maintaining it on the authority of the case referred to. Such, however, is not the character of the rule as stated in that case. Neither is the rule there laid down applicable to the case in hand, for in this the accident happened on an avenue sixty feet wide, provided with electric lights, and the plaintiff testified that it was on a clear moonlight night, and that he “ could see about ten squares.”

It is the duty of a passenger railway company to run its cars, by day and by night, with or without headlights, in such manner, as to speed and attention, as not to imperil the safety of others who may be lawfully and with due care using the roadway. The degree of care required for this purpose necessarily varies with the circumstances. Under some conditions, arising from the character of the region traversed, the grade of the track, and the various surroundings, a rate of speed permitting the stoppage of the car at a point within the range of its headlight, or even at a shorter distance, may be necessary, while under different conditions this rate may safely be exceeded. The unqualified affirmance of the point in question, therefore, was error. In the affirmance of the plantiff’s third, sixth, eighth and ninth points, some aspects of the duties of street railway companies and motormen were briefly presented, but nowhere was the rule embodied in the fifth point in any manner qualified. Whether the jury might have'found negligence on the part of the defendant, even had this point not been affirmed, is a matter that we cannot consider. The. defendant’s motorman testified that he “ could not get the car stopped within the distance that the headlight would extendthe court, in affirming the plaintiff’s fifth point, instructed the jury that “ a railway is negligent if it runs its car at a rate of speed that will not permit its stopping within the distance covered by its own headlight;” and followed with the instruction that “if you find that the plaintiff was not negligent, and you find that the defendant was negligent, .... you will then pass to the question of damages.” Under the undisputed evidence of inability to stop the car within the range of its headlight, and the instruction that this was negligence, the jury could only find that the defendant was negligent, without regard to the evidence bearing on any other aspect of the case, or to any condition by which this absolute definition of negligence might be qualified. The court having, in effect, instructed the jury that the defendant was negligent, it is to be presumed that their verdict was based on this instruction; and whether they might have reached the same conclusion without this instruction is immaterial.

Judgment reversed and a venire de novo awarded.