Gilmore v. United Traction Co. , 26 Pa. Super. 97 ( 1904 )

Opinion by

Henderson, J.,

The team of the plaintiff was passing along Church alley in the charge of a driver about half past seven o’clock in the evening in January, 1901. The team was stopped about twenty-five feet from the line of Green street because one of the tugs became unfastened. The driver got off the wagon, fastened the tug and walked to Green street to ascertain whether a car was coming or not. He could see one square in each direction. No car was in view. He walked to the wagon, got on it and drove at a slow walk to Green street and onto -the track located in Green street. Church alley is about ten feet wide and Green street about fifteen feet wide. An approaching car struck the horse nearest to it on the side just as the team got on the track. The learned trial judge was of the opinion that the plaintiff’s servant was guilty of contributory negligence under the evidence and with that conclusion we concur. After the driver made his observation at the track he got onto his wagon and drove “ very slowly ” and, in the language of the witness, “ the minute I got on the track the car came along and bumped the horses.” In the opinion of the witness it took about a minute to walk back to the wagon and drive onto the track. It does not appear that the driver made any other effort to ascertain whether a car was approaching when he was about to drive onto the track. It was his duty, however, to look just before he got upon the track. The observation made before his return to his team would serve no useful purpose in view of the fact that a sufficient time had elapsed when the team reached the track for a car to have come several hundred feet at the ordinary speed of a street car. The duty to look for an approaching car is an absolute duty and failure to do so is negligence per se. This duty is not performed when first entering on the street, but continues until the track is reached: Smith v. Electric Traction Co., 187 Pa. 110; Burke v. Traction Company, 198 Pa. 497; Potter v. Scranton Railway Co., 19 Pa. Superior Ct. 444.

No question arises as to the proper place to look in crossing electric roads in cities. The duty is to look just before crossing. The observation should be made at the time and place which would afford information of the presence of an approaching car. It is true the alley along which the teamster was driving and the street along which the car came were narrow and buildings were erected on either side-of the alley. It does not appear, however, but that in the exercise of ordinary care under the circumstances, the driver, who was familiar with the premises, might have discovered the approach of the car before he drove onto the track.

The judgment is affirmed.