Opinion
October 3, 1930.
December 12, 1930.
Negligence — Automobile — Street car — Collision — Street intersection — Personal injuries — Evidence — Sufficiency — Judgment n.o.v.
In an action of trespass by passengers of a taxicab to recover for personal injuries sustained in a collision between the cab and the defendant's street car at a street intersection, the evidence established that the driver of the taxicab was guilty of negligence. It appeared that when the cab, which was proceeding eastwardly, reached the intersection and started to turn to the left to enter a one way street, on which traffic was only north bound, the defendant's trolley was standing south of the intersection. The taxicab went about twenty feet after it started to turn when it was struck on the right rear by the left front corner of the trolley car, which stopped at once. There was no evidence, however, as to how long before the collision occurred the taxicab had been on or too close to the street railway track, or that it had been there long enough to permit the motorman to stop his car and avoid the collision.
In such circumstances there was not sufficient evidence of concurrent negligence on the part of the motorman to take the case to the jury and judgments entered for the plaintiffs will be reversed.
There was no necessity for the taxicab to cross the defendant's track because traffic moved northwardly on both sides of it and if the driver of the taxicab suddenly and without warning drove on or so close to the track as to be unavoidably hit by the trolley car, the collision is no proof of negligence on the part of the motorman.
Appeals Nos. 134, 135, 136 and 137, October T., 1930, by Philadelphia Rapid Transit Company, from orders of M.C., Philadelphia County, May T., 1928, Nos. 1244 and 1245, in the cases of Anna Metrick and Alexander Metrick, her husband and in his own right v. Philadelphia Rapid Transit Company and Quaker City Cab Company and Emily Myron, a minor, by her next friends and parents, Anthony Myron and Emily Myron, and Anthony Myron and Emily Myron, parents, in their own right v. Philadelphia Rapid Transit Company and Quaker City Cab Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Reversed.
Trespass to recover for personal injuries. Before GLASS, J.
The facts are stated in the opinion of the Superior Court.
Verdicts for Anna Metrick in the sum of $1,000; for Alexander Metrick in the sum of $510; for Emily Myron in the sum of $500 and for Anthony and Emily Myron in the sum of $314 and judgments entered thereon. Philadelphia Rapid Transit Company appealed.
Error assigned, among others, was the refusal of appellant's request for binding instructions.
Warwick Potter Scott, for appellants.
Bryan A. Hermes, and with him Otto Kraus, Jr., for appellee.
Argued October 3, 1930.
That the driver of the taxicab in which these plaintiffs were riding was guilty of negligence in colliding with appellant's trolley car is not disputed. The point in issue is whether there was sufficient evidence of the concurrent negligence of the appellant's motorman to take the cases to the jury. The verdict resolves all disputed questions of fact in favor of the plaintiffs, but giving them the benefit of all the evidence favorable to them and all inferences which may reasonably be drawn from them, a majority of the court are satisfied that there was not sufficient evidence of the motorman's negligence to justify the submission of the cases to the jury.
The taxicab in which plaintiffs were riding was being driven east on Columbia Avenue approaching Thirteenth Street. The appellant maintains a double trolley track on Columbia Avenue and a single track on Thirteenth Street, which is a one-way street, with traffic northbound. Traffic moves both ways on Columbia Avenue. Appellant's trolley car was standing on Thirteenth Street just south of Columbia Avenue as the taxicab started to turn from the north side of Columbia Avenue into Thirteenth Street. The taxicab went about twenty feet after it started to turn when it was struck on the right rear by the left front corner of the trolley car, which stopped at once. There is no evidence as to how long before the collision occurred the taxicab had gotten on or too close to the street railway track. As the automobile traffic moved northward on both sides of the track, it was possible for the taxicab to turn northward into Thirteenth Street without getting on the Thirteenth Street trolley track at all; and if the driver suddenly and without warning drove on or so close to the track as to be unavoidably hit by the trolley car, the collision is no proof of negligence on the part of the motorman. The case is not the same as if traffic had moved both ways on Thirteenth Street. Then in order to go north the taxicab would have had to cross appellant's track. Here there was no such necessity and a lurch upon or too close to the track so suddenly that a collision could not be avoided would be no ground for recovery against the Transit Company. The mere fact that the motorman saw the taxicab driver about to turn into Thirteenth Street would not of itself put him on notice that the latter intended to cross the trolley track or come so close to it as to cause a collision.
The case is barren of any evidence showing how long the taxicab was on appellant's track, or in a position where it was evident it would be hit, before the collision occurred, and unless it was there long enough to permit the motorman to stop his car and avoid the collision, the appellant would not be liable: Munkenbeck v. Phila. R.T. Co., 92 Pa. Super. 442, 444.
The first assignment of error is sustained. The judgments are reversed and are now entered in favor of the appellant, Philadelphia Rapid Transit Company, non obstante veredicto.