Opinion
October 11, 1928.
November 21, 1928.
Negligence — Contributory negligence — Street car — Truck — Collision — Non-suit.
In an action of trespass to recover for damages to a truck, arising out of a collision with a street car at a street intersection, the evidence disclosed that plaintiff's driver was operating a slow moving heavily loaded electric track on an ascending grade. When he reached the intersecting street he saw defendant's car approaching on a descending grade about 80 to 100 feet away. He testified that the street was "pretty wide" and that the street car was about 50 feet away when he reached the track. In such case the driver was guilty of contributory negligence in attempting to make the crossing and a non-suit was properly entered.
Mundano v. P.R.T. Co., 289 Pa. 51, followed:
Appeal No. 99, October T., 1928, by plaintiff from judgment of C.P., No. 3, Philadelphia County, September T., 1925, No. 2134, in the case of Electric Storage Battery Company v. The Philadelphia Rapid Transit Company.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM., JJ. Affirmed.
Trespass to recover for damages to an electric truck. Before FERGUSON, P.J.
The facts are stated in the opinion of the Superior Court.
The court entered a judgment of non-suit. Plaintiff appealed. Error assigned was the refusal of plaintiff's motion to take off the non-suit.
Richard K. Stevens, and with him Lewis M. Stevens, of Stradley, Ronon Stevens, for appellant.
Raymond V. John, and J.J.K. Caskie, for appellee.
Argued October 11, 1923.
The truck driver was the only witness who described how the truck was struck by the street car, and on his evidence the court entered a non-suit. His negligence contributed to the collision, even if defendant's negligence be assumed. He was driving a slow moving, heavily loaded electric truck on 19th Street on an ascending grade, intending to turn westward on Allegheny Avenue which has two street car tracks for eastbound and westbound cars. When he reached Allegheny Avenue where he stopped, he saw an eastbound car approaching on a descending grade about "80 to 100 feet away from me." Notwithstanding the proximity of the car, he started his truck to cross sufficiently to make the turn and was struck before he got his truck across the northern rail. He described Allegheny Avenue as "pretty wide," "about 30 or 40 or 50 feet something like that." When he reached the track, he said, ". . . . . . I guess he [the motorman] was about 50 feet away or more than that." His evidence is contradictory in minor details which need not be recited but which clearly bring the case within the rule considered in Mudano v. P.R.T. Co., 289 Pa. 51, 58. The non-suit was inevitable.
Judgment affirmed.