Opinion
October 8, 1929.
January 29, 1930.
Negligence — Automobile — Horse and wagon — Collision — Street intersection — Contributory negligence.
In an action of trespass to recover for damages to the plaintiff's automobile, resulting from a collision with the defendant's horse and wagon at a street intersection, the plaintiff testified that he had parked his automobile about fifteen feet from the curb line of an intersecting street. When he entered his car, he slowly started, and had reached the center of the intersecting street before he saw the plaintiff's horse and wagon approaching from the right. He alleged that the plaintiff's horse was galloping at a terrific speed, and that it crashed into the right side of his car.
As the plaintiff, according to his own evidence, had ample opportunity before he put his car into the course of the approaching horse, to see its approach, if he had looked, when it was his duty to do so, or, if he looked at the proper time, to stop his car if under proper control at the street intersection, he cannot be said to have exercised that care which the law expects of the prudent man in the circumstances.
Held: That plaintiff was guilty of contributory negligence and a judgment in his favor will be reversed.
Appeal No. 48, October T., 1929, by defendant from judgment of M.C., Philadelphia County, June T., 1924, No. 290, in the case of J. Ryland Fortune v. Henry Dolfinger, individually and trading as Dolfinger's Dairies.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Reversed.
Trespass to recover for damages to an automobile. Before CRANE, J., without a jury.
The facts are stated in the opinion of the Superior Court.
The court found for the plaintiff in the sum of $559 and judgment thereon. Defendant appealed.
Error assigned was the refusal of defendant's motion entered for judgment non obstante veredicto.
Charles E. Kenworthy, for appellant.
John D. McMullin, for appellee.
Argued October 8, 1929.
Plaintiff has judgment for damage to his automobile sustained in a collision with a horse and wagon at 16th and Christian Streets, Philadelphia, at about four o'clock in the afternoon of May 28; the day was clear and there was no other traffic in the streets obstructing the view. We assume the negligence of the defendant. But we also think that the contributory negligence of the plaintiff appears in his own evidence. He had parked his car on Christian Street along the right curb, headed eastward, and "about 15 feet possibly from the corner of the intersection of 16th Street," by which, he said, he meant the "curb line" of 16th Street. The 16th Street sidewalk was "about 12 feet" wide. On the corner was a church. We therefore understand that by moving forward a very short distance — 7 or 8 feet — he would have an unobstructed view of 16th Street to the right, in the direction from which defendant's horse and wagon was travelling northward toward Christian Street.
He states that he entered his car and started forward "in low gear, naturally slow." He did not see the approaching horse and wagon until he "got out into the street" (16th Street); that then the horse and wagon were galloping at a "teriffic speed" and crashed into the right side of his automobile, doing the damage complained of. As to the position of his car when struck, he said "after he came into me it was about the centre of the street ......" 16th Street being 25 to 30 feet wide according to his evidence. His account states his contributory negligence; there is no other evidence in the record describing the occurrence except that by an eye-witness called by defendant who tells a story damaging to the plaintiff, but which, for that reason, we do not consider in disposing of this appeal. As he had ample opportunity before he put his car into the course of the approaching horse, to see its approach, if he had looked, when it was his duty to do so, or, if he looked at the proper time, to stop his car if under proper control at a street intersection, he cannot be said to have exercised that care which the law expects of the prudent man in the circumstances: see generally Frank v. Pleet, 87 Pa. Super. 494; Brayman v. De Wolf, 97 Pa. Super. 225; Powers v. Wiebe, 86 Pa. Super. 392, 394.
Judgment reversed and now entered for defendant.