2. That even if he has not, it is negligence for a motor-man not to stop his car in time to prevent a collision in broad daylight with a conspicuous obstacle like a wagon in front of him.
As to the first point:
An obstruction of the highway which is temporary and partial may be justified in cases of plain, evident necessity, but not where that necessity is argumentative and supposititious: Com. vs. Passmore, 1 S. & R. 217; Rex v. Russell, 6 East. 427. There was no necessity on the plaintiff to water his horses in the way he did. Two other ways, both perfectly safe, were open to him. He chose the easiest and the riskiest.
But if there had not been two safe ways open for him, he would still have been guilty of negligence in drawing his wagon across a trolley track, on a busy city street, on which cars were running every minute or two. The primary use of the car track is for public travel, not for watering horses. A permanent watering-trough on a sidewalk, so constructed as not to be usable without stopping the running of the cars, would be a nuisance. The supposed analogy to the right of an abutter to load and unload a necessary article fails entirely. A passing driver is not in the position of an abutter, the reasonableness of whose action is determined by the degree of momentary necessity, and the limit of whose right is that his obstruction must be temporary. Here, however, the watering-trough and not the driver is in the abutter's position. The watering-trough is a public utility, which every one may use. On a warm day, in a busy city street, hundreds of vehicles may stop there, and the quantity of obstruction is not the time occupied by each, but the sum of the times occupied by all. The effect must necessarily be a serious hindrance to public travel, which might sometimes result in complete stoppage.
To use the thought of Mr. Justice Dean, in Com. vs. Forrest, 170 Pa. 47, the law would soon be invoked to decide whether the car track was for the cars or for vehicles stopped thereon for the purpose of watering horses; whether the driver of such vehicles was in the exercise of a lawful right or was a usurper of the rights of others.
In the case of Attorney-General vs. the Sheffield Gas Consumers' Company, 19 Eng. Law & Eq. 639, Lord Chancellor Cranworth, considering a similar question, used this illustration: "No doubt that it would be a nuisance, and a very serious nuisance, if a person with a barrel organ, or the bagpipes, were to come and station himself under a person's window all day. But when he is going through a city, you know that he will stop ten minutes at one place and ten minutes at another, and you know he will so go on during the day." The watering- trough, however, is stationary.
As to the second point:
The general rule in Pennsylvania is that contributory negligence prevents recovery. This rule, it is true, does not apply where the defendant is guilty of "negligence so wanton and gross as to be evidence of voluntary injury"; Wynn vs. Allord, 5 W. & S. 525; McKnight vs. Ratcliff, 44 Pa. 156. There is, however, nothing in the testimony to indicate that the defendant's motorman did anything wanton. Coming down a steep hill, he failed for a moment to see an obstacle which he had a right to expect would not be on the track. No one says that he did not do his best to prevent the collision after he had seen the wagon.
The question at bottom is one of public policy. Should the motorman anticipate that persons of mature age will station their wagons across the tracks? If the rights of the traveling public are to be preserved, the answer must be in the negative.
4. Aside from the money question, the most serious problem that confronts the people of America to-day is that of rescuing their cities, their States and the federal government, including the federal judiciary, from absolute control of corporate monopoly. How to restore the voice of the citizen in the government of his country; and how to put an end to those proceedings in some of the higher courts which are farce and mockery on one side, and a criminal usurpation and oppression on the other….