
    Behl v. Philadelphia, Appellant.
    
      Negligence — City—Defect in highway — Province of court and jury.
    
    In an action by a widow against a city to recover damages for the death of her husband, the evidence for the plaintiff tended to show that the deceased was thrown from his wagon by a jolt, or by the wheel of the wagon slipping into a hole or rut beside a railway track. The evidence for the defendant tended to show that the wheel had caught in the frog of the railroad track and given the wagon a sudden twist. Held, that the case was for the jury.
    Argued March 24,1908.
    Appeal, No. 358, Jan. T., 1902, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1902, No. 2450, on verdict for plaintiff in case of Annie Behl v. Philadelphia.
    Before Mitchell, Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    
      Verdict and judgment for plaintiff for $5,000. Defendant appealed.
    
      Error assigned was in submitting the case to the jury.
    
      Chester N. Farr, Jr., assistant city solicitor, with him Samuel Chew assistant city solicitor, and John L. Kinsey, city solicitor for appellant.
    
      John M. Vander slice, with him Clarence Vander slice, for appellee.
    May 25, 1903:
   Per Curiam,

The jolt of the wagon by which plaintiff’s husband was thrown off might have occurred either from the wheel slipping into the hole or rut beside the railway track, as testified to on the part of the plaintiff, or by its having caught in the frog of the railway track and given the wagon a sudden twist, as claimed by the defendant. There was positive testimony both ways from witnesses who were present at the time. The case was therefore clearly for the jury notwithstanding the fact that the witnesses for the defense were the most numerous.

Judgment affirmed.  