McGonigal v. Pittsburgh Railways Co.

Citations

• 243 Pa. 47
• 89 A. 805
• 1914 Pa. LEXIS 574

Syllabus

<p>Negligence — Street railways — Pedestrians crossing track — Contributory negligence — Charge—Damages.</p> <p>1. If the court assume .the existence of certain facts to be shown by the evidence, it should instruct the jury clearly and. distinctly as to the law applicable to those facts.</p> <p>2. In an action against a street railway company to recover damages-for personal injuries sustained by the plaintiff through being hit by a car while crossing defendant company’s tracks at the-intersection of two city streets, where the testimony of the plaintiff himself is sufficient to carry the case to the jury, and the defendant produces witnesses from whose testimony the jury is warranted in finding that the defendant company was without negligence, and .that the plaintiff, who admittedly had a view of fifty'feet in the direction from which the car came, started to cross the track when the car was within about six or seven feet of him, the court commits error in charging that, if the jury should believe the testimony of the defense, the question as to whether or not plaintiff was guilty of contributory negligence would then be for them to decide, as such conduct on the part of the plaintiff would have been negligence and the court should have so instructed the jury.</p> <p>3. In such a case, the court committed error in instructing, “If the bell did ring and the lights were lit and the headlight shining, did this man, within six feet of the approach of a car, in that dangerous weather, did he cross then and there under that condition? If he did he ought not to recover, and the verdict ought to •be' for the defendant,” as this left it to the discretion of the jury to determine, if they found such facts to exist, whether the plaintiff was. guilty of negligence or not. The court should have instructed the jury that, if they found from the evidence the facts 'to be as stated, the plaintiff was guilty of negligence and there icould be no recovery.</p> <p>' 4. It is the duty o