Reilley v. Philadelphia Traction Co. , 176 Pa. 335 ( 1896 )

Opinion by

Mr. Justice Mitchell,

It must be conceded that the plaintiff had crossed the street in front of the car and then unexpectedly turned to recross, and was struck by the car under such circumstances of contributory negligence as would have prevented a recovery by an adult. But the learned judge below left the case to the jury on evidence that at the time of the accident the driver was not looking at the track in front of Mm, but had allowed his attention to be diverted by a party of men or boys who were shouting at the corner of the street just passed by the car.

It is the duty of the driver to watch Ms horses carefully (and the rule is equally applicable to other motive powers) and to have them at all times under as complete control as the necessary motion of the car will permit, and his attention should be directed steadily to the track ahead of him to observe its condition and any danger that may threaten the safety of either his car or the public. It is true that he is entitled to take notice of intending passengers, and especially to watch the motions of those entering or leaving the car, though this belongs more particularly to the duty of the conductor: In Johnson v. Railway Co., 160 Pa. 647, it is said by our Brother Dean : “We decline to say, as urged by appellee, that a street car driver may not, under any circumstances, turn his head to observe the movements or signals of those who desire to get on the car. His duty is to drive the horses with care; to be on the lookout for obstructions, whether persons or vehicles, on the track; he may, in the performance of this duty, ascertain from a person on the side of a street, by looking at him, whether he desires to take passage; in doing this, he may for an instant turn his face to the sidewalk.” But it was said in that case that “ at what distance the driver might have seen the child had his attention been directed to the track does not clearly appear,” and the question was therefore for the jury. So also it was said in Pass. Ry. Co. v. Foxley, 107 Pa. 537, that “ whether if his attention had been wholly given to his business he might have seen the child in time to avert the injury, was, under a,ll the circumstances, clearly for the consideration of the jury.” To the same effect is Harkins v. Traction Co., 173 Pa. 149.

The cases of Chilton v. Traction Co., 152 Pa. 425, and Flanagan v. Pass. Ry. Co., 163 Pa. 102, cited by appellant, belong to a different class, as in them it was undisputed that the driver was paying attention to his duty and the child unexpectedly ran in front of the car.

Judgment affirmed.