Kennewig v. Pittsburgh Railways Co.

Opinion by

Mr. Justice Elkin,

The learned counsel for the appellee begin their argument with a very fair statement of what must be considered in this case. The statement is as follows: “The sole question to be determined in this case is, whether or not the appellants were, under the undisputed facts in the case, guilty of contributory negligence; if they were not, or if there was any doubt, then the case should not have been taken from the jury; if they were, then the judgment of compulsory nonsuit was proper and should be affirmed.” This is the whole case and it is very fairly stated. It is a close case and one not free from difficulty. It all depends upon the facts and the view that may be taken of the situation at the time of the accident. From the testimony introduced by appellants it appears that Woodville avenue at the time of the accident was a public street having a cinder walk three or four feet wide on the right side of the inbound tracks of the defendant company for the use of pedestrians. The testimony further discloses that there was no pavement other than the cinder walk which pedestrians could use. Therefore, it cannot be said as a matter of law that the appellants were guilty of negligence per se in walking on the cinder path which the city had provided for that very purpose. It is true they were walking longitudinally with the tracks of the street railway company, but they were required to do so because the cinder walk was so located. They may have been negligent in walking too close to the tracks of the street railway, but this was a question of fact, which in view of the condition of the street, the situation of the parties, and the circumstances of the case, was for the jury and not for the court to determine. It was the clear duty of appellants to exercise reasonable care in keeping a lookout for approaching cars and to avoid such dangers as should have been apprehended by ordinarily prudent persons in making use of the cinder walk. On the other hand, it was the. duty of the motorman to keep a constant lookout ahead so as to see and be prepared to avoid dangers to pedestrians rightfully making use of the cinder walk, or the street. If Woodville avenue had been a street with a curb and pavement, we would agree with the contention of learned counsel for appellee, that appellants were guilty of contributory negligence which should have been so declared as a matter of law. Under such circumstances the cases relied on by the learned court below would be clearly applicable. The present case is distinguishable from the cases cited because of its facts. The fact that there was no well marked division line between the cinder walk and the tracks of the street railway company, required a greater degree of care to be exercised by both parties to this controversy, and whether either or both failed in the performance of that duty was a question of fact, for the jury. If different inferences can be drawn from the facts, or if there is doubt about the inference to be drawn, it is the province of the jury to determine the question. Our conclusion is that the present is such a case.

Judgment reversed and a venire facias de novo awarded.