
    Frey v. Conestoga Traction Co., Appellant.
    
      Negligence — Street railways — Collision between street car and wagon — Contributory negligence.
    
    A driver of a wagon cannot be convicted of contributory negligence as a matter of law, in a collision between Ms wagon and a street car, where the evidence shows that he started to cross over a street in the middle of which was a track about 26 feet from the curb; that, when he turned his horse to cross the track, the car which struck him was from 250 to 275 feet away; that he drove at a walk onto the track, and, seeing the approaching car about 160 to 170 feet distant, urged his horse on, and, when the horse was on the track, the car was about 85 or 90 feet away; that the wagon was struck by the car; and that, just before the collision, the motorman acted as if he was turning off the current, but, instead of doing so, turned it on.
    Argued May 17, 1920.
    Appeal, No. 238, Jan. T., 1920, by defendant, from judgment of C. P. Lancaster Co., Feb. T., 1919, No. 38, on verdict for plaintiff, in case of S. F. Frey v. Conestoga Traction Co.
    Before Brown, C. J., Moschzisker, Frazer, Walling, Simpson and Kephart, JJ.
    June 26, 1920:
    Affirmed.
    Trespass for personal injuries and for injuries to wagon.- Before Landis, 1\ J.
    The opinion of the Supreme Court states the facts.
    Yerdict and judgment for plaintiff for $1,868. Defendant appealed.
    
      Errors assigned were (1) refusal of binding instructions for defendant, and (2) discharge of rule for judgment n. o. v., quoting record.
    
      John E. Malone, with him 8. R. Zimmerman, for ap pellant.
    
      Victor Frey, with Mm B. F. Davis, for appellee.
   Per Curiam,

It is conceded that the negligence of the appellant was for the jury, but it is urged by learned counsel that the contributory negligence of the appellee barred a recovery and the court below should have so held. The situation at the time the collision occurred may be briefly stated. The appellee started to drive across from the west to the east side of College avenue, in the City of Lancaster. A track of the defendant company is in the middle of the avenue, distant about twenty-six feet from the west curb, and, when the appellee turned his horse to cross over it, the car which struck Ms wagon was from two hundred and fifty to two hundred and seventy-five feet away. He drove at a walk onto the track, and, seeing the approaching car about one hundred and sixty to one hundred and seventy feet distant, he urged his horse on, and, when it was upon the track, the car was about eighty-five or ninety feet away. The horse got safely over the track, but the wagon was struck and the injuries were sustained for which this action was brought. It further appeared from the testimony that the motorman just before the collision acted as if he was turning off the current, but instead of doing so, he turned it on. Upon the foregoing state of facts, supported by the testimony, a fair conclusion to be reached by the jury was that the appellee was justified in assuming that he had ample time to cross over the track if the car would approach him at a usual rate of speed, and he could not, therefore, be adjudged guilty of contributory negligence as a matter of law. Callahan v. Phila. Traction Co., 184. Pa. 425, and Hamilton v. Consolidated Traction Company, 201 Pa. 351, are conclusive of the correctness of the ruling of the learned court below, and the judgment is affirmed.  