Opinion
October 15, 1931.
December 16, 1931.
Negligence — Truck — Street car — Parking truck near track — Miscalculation of space — Collision — Contributory negligence as matter of law and fact.
In an action of trespass, tried without a jury, to recover for damages to a truck, the plaintiffs' evidence established that the truck was proceeding northwardly and that the driver parked it on the west side of the street against the curb and north of an intersecting street. The defendant's street car, which approached the intersection from the east, turned the corner to proceed northwardly. In turning, however, the overhang of the car struck the truck. The driver of the truck did not see the collision but testified that in his judgment there was room for the car to pass.
In such circumstances where the truck driver, knowing that street cars were likely to pass parked his car too close to the track under the mistaken impression that there was room for the cars to clear it, he was guilty of contributory negligence in law, as well as in fact, and a judgment entered for the defendant will be affirmed.
Appeal No. 376, October T., 1931, by plaintiffs from judgment of M.C., Philadelphia County, December T., 1930, No. 1554, in the case of Henry A. Maddock and Percy G. Maddock, copartners, trading as Maddock Company v. Philadelphia Rapid Transit Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Trespass to recover for damages to truck. Before LEWIS, J., without a jury.
The facts are stated in the opinion of the Superior Court.
Finding for defendant and judgment entered thereon. Plaintiffs appealed.
Error assigned, among others, was the entry of judgment.
D.H. Hamilton, and with him J.W. McWilliams and C.S. Wesley, for appellants.
Samuel H. Coplin, and with him Bernard J. O'Connell, for appellee.
Argued October 15, 1931.
This is an action for damages to an automobile truck. About nine o'clock on the morning of October 17, 1930, plaintiffs' driver drove their truck northward on Seventh Street, in the City of Philadelphia, and parked it on the west side of the street against the curb at a point north of Washington Square, and went into a building to deliver a package. Defendant operates a single track trolley line on Seventh Street, the cars going north into that street by turning to the right at the corner of Washington Square. While the driver was delivering the package a trolley car swung around the curve at Seventh Street and Washington Square and the overhang of the car struck the truck. The driver testified for plaintiffs that he "pulled up above the bend to give the car a chance to pull around there. To my own judgment I pulled up far enough and I stopped the truck." This witness did not see the accident. The only other witness called by plaintiffs testified that he was driving a truck behind the trolley car as it proceeded west on Washington Square and turned north into Seventh Street at a speed of about ten or eleven miles an hour, and that he heard a crash and through the windows of the trolley car saw the truck move. Defendant offered no testimony and the court below, sitting without a jury, entered a finding for defendant on the ground that the negligence of the driver of the truck contributed to the accident. Plaintiff's motion for judgment non obstante veredicto and for a new trial were overruled. Hence this appeal.
Appellants ask us to answer a single question, namely, whether the court below erred in holding that the driver of the truck was guilty of contributory negligence as a matter of law. The answer must be that this question is not raised by the record. The trial judge found as a fact that the negligence of the driver of the truck contributed to the accident, and that for this reason plaintiffs could not have a finding in their favor. This is all that the court did decide, and we are very clear that the evidence warranted such a finding. Assuming, but by no means deciding, that the evidence warranted a finding that the trolley car was negligently operated, manifestly the driver of the truck miscalculated the space which would be taken up by the overhang of the trolley car when it turned the corner, or was passing the truck. He knew that street cars were likely to pass, and if he parked his car too close to the street car track under the mistaken impression that there was room for the cars to clear it, he was guilty of contributory negligence in law, as well as in fact. It is definitely settled that in such circumstances there can be no recovery: Patton v. P.R.T. Co., 132 Pa. 76; Hause v. Lehigh Valley Transit Co., 38 Pa. Super. 614; and Rothweiler v. P.R.T. Co., 93 Pa. Super. 369 . See also the recent opinion by our Brother LINN to the same effect in Reidel Fishell v. P.R.T. Co., 103 Pa. Super. 387.
The judgment is affirmed.