#### L. C. SCHWARTZ v. SIMON BRAHM.

APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY.

Argued October 31, 1889

Decided November 11, 1889.

Where the driver of a wagon, following a street car on a dark night, turned out to pass the car, and in so doing ran down and injured a person crossing a street in front of the car, on a public crossing, and the testimony as to the speed at which the wagon was driven was conflicting, the question of the defendant’s negligence was for the jury.

Before Paxson, C. J., Sterrett, Green, Clark, Williams, McCollum and Mitchell, JJ.

No. 113 October Term 1889, Sup. Ct.; court below, No. 448 March Term 1886, C. P. No. 1.

On February 1, 1886, a summons in trespass was served in an action brought by Ludewig C. Schwartz against Simon Brahm. Issue.

At the trial on January 9, 1889, the plaintiff, examined through an interpreter, testified that on a dark night in January, about 9 or 10 o’clock, he came along Middle street in Allegheny city, and when at the corner of North Avenue he saw a street car coming very slowly up that avenne. Seeing no other car, wagon, or vehicle, he crossed the street immediately in front of the street ear, but before he reached the curb stone on the opposite side, he was struck by the wagon of the defendant, driven by an employee, and seriously injured. The driver of the street car testified that he was driving his mules up North avenue at a walk; that the defendant’s wagon was following in the rear of his car, and just before the accident the driver of the wagon turned out to pass, and struck the plaintiff after he had passed across in front of the street ear. There was testimony that the wagon was driven out from the rear of the car quite rapidly. The driver of the wagon testified that he was driving at a walk, and that he did not see the plaintiff until he came out from the front of the car.

The defendant requested the court to charge that under all *412the evidence in the case their verdict should be for the defend ant. This point was refused by the court,1 Stowe, P. J., whc submitted the questions involved to the jury. The jury returned a verdict for the plaintiff for $1,200. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal, specifying as error the refusal of the defendant’s point.1

*Mr. Geo. B. Gordon*(with him *Mr. John Dalzell*and *Mr. Wm. Scott),*for the appellant.

Counsel cited: Phila. & R. R. Co. v. Yerger, 73 Pa. 121; Waters v. Wing, 59 Pa. 213; Goshorn v. Smith, 92 Pa. 438; Baker v. Pehr, 97 Pa. 72; Schmidt v. McGill, 120 Pa. 405.

*Mr. John Marrón*(with him *Mr. Thos. M. Marshall),*for the appellee.

Pek Cukiam:

The single assignment of error is, that the court should have directed a verdict for the defendant. This the learned judge could not have done, in view of the evidence. It is enough to say that there was a conflict of testimony as to the speed at which the wagon was driven. If the driver was driving rapidly, upon a dark night, when he reached a crossing where foot-passengers were accustomed to cross and had a right to cross, and by doing so the plaintiff was run over by the wagon and injured, it was certainly a case for the jury. And there was some evidence that he was driving at a greater rate of speed than would be justifiable under the circumstances. He was following a passenger car, which was going up the hill at a walk; and there is no dispute but that he turned out to pass it, and did pass it, and just as he had done so the plaintiff was struck. If the driver’s horse was walking, as contended for, it is difficult to see how he could have passed the car in so short a time.

Judgment affirmed.