Opinion
November 13, 1930.
December 27, 1930.
Negligence — Street intersection — Truck — Street car — Collision — Failure to look before entering tracks — Contributory negligence — Judgment n.o.v.
In an action of trespass to recover for damages to a truck and for personal injuries to the driver, sustained in a collision with defendant's trolley car at a street intersection, there was evidence that the plaintiff's truck was being driven westwardly by the driver-plaintiff at a speed of 20 miles per hour on the north side of a street upon which the defendant maintained two street car tracks, with the roadway for vehicles between them. The driver-plaintiff testified that as he approached the street intersection and started to make a turn to the left, he saw the defendant's trolley coming from the west on the south track about 400 feet away. He stated that he reduced the speed of the truck to 10 miles per hour but that he did not look again for the car until his front wheels were across the first rail of the eastbound track. At that time the trolley was 125 or 150 feet away. Thinking that he could make the crossing, he proceeded and was struck before the truck was clear of the track and overhang of the car.
In such case the driver of the truck was guilty of contributory negligence as a matter of law and judgments for the plaintiffs will be reversed and entered in favor of the defendant, non obstante veredicto.
A driver who fails to look for approaching cars immediately before going upon a street car track is guilty of contributory negligence.
Appeal Nos. 334, 336, October T., 1930, by defendant from judgments of M.C., Philadelphia County, August T., 1926, No. 72, and September T., 1926, No. 1104, in the case of E. Sklaroff, William Sklaroff and Morris Likoff, copartners, trading as S. Sklaroff Sons v. Philadelphia Rapid Transit Company and Louis Diamond v. Philadelphia Rapid Transit Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Reversed.
Trespass to recover for personal injuries and for damages to a truck. Before KNOWLES, J.
The facts are stated in the opinion of the Superior Court.
Verdict for Louis Diamond in the sum of $300 and for S. Sklaroff Sons in the sum of $400 and judgments entered thereon. Defendant appealed.
Error assigned, among others, was the refusal of defendant's motion for judgment non obstante veredicto.
Harpur M. Tobin, for appellant.
Victor H. Blanc, for appellee.
Argued November 13, 1930.
A careful review of all the evidence in this case, considered in the light most favorable to the plaintiffs, satisfies us that Diamond, who was driving the Sklaroff truck when it was hit by the defendant's trolley car, must be held guilty of contributory negligence as matter of law, and that defendant's points for binding instructions should have been affirmed or judgments non obstante veredicto entered in its favor.
Island Road runs east and west. Two street car tracks are maintained along or upon it by defendant, one on the north side, for west bound traffic and the other on the south side for east bound traffic, with the roadway for vehicular traffic between. At or about 77th Street it is practically a country road, the country being open with only a few houses around.
At eleven o'clock in the morning of March 26, 1926, the plaintiff Diamond was driving the other plaintiffs' truck westward on Island Road on the north side of the roadway used for vehicular traffic, traveling about twenty miles an hour, and intending to turn southward into 77th Street. As he approached 77th Street and started to make the turn he saw defendant's car approaching from the west about 400 feet away. He slackened his speed to ten miles an hour but did not look again until his front wheels were across the first rail of defendant's east bound track, and then defendant's car was distant from 125 to 150 feet away. Thinking, he said, that he could clear the track he proceeded and was struck before the truck was clear of the track and overhang of the car. In doing this he violated the well-established rule which required him to look for the defendant's car just before entering on the track: Smathers v. Pittsburgh Butler St. Ry. Co., 226 Pa. 212, 215; Benamy v. Reading Transit Light Co., 269 Pa. 372, 373; Camac v. Phila. R.T. Co., 269 Pa. 543, 544; Kalter v. Phila. R.T. Co., 95 Pa. Super. 116, 121; Thornton Fuller Auto Co. v. Phila. R.T. Co., 95 Pa. Super. 286, 288. When he looked the second time he was already in a place of danger, with his front wheels over the first rail where it would have taken as long to stop and reverse and back off as to go ahead and clear the track. Had he looked just before going on the track he would have seen defendant's car only 150 feet away and coming at a rate of 35 to 40 miles an hour, and would have realized that if the trolley car had traveled 250 feet while he had crossed the roadway between the tracks, it was at least doubtful whether he could safely clear the track while the car traveled the remaining distance. There is no room for question that Diamond testified that he looked just before he started to make the turn and did not look again until he was partly across the track; and that being so, and having been hit before, in the ordinary operation of his truck, he could clear the track, he must be held guilty of contributory negligence as matter of law.
The first and second assignments of error in each appeal are sustained. The judgment in each case is reversed and entered in favor of the defendant non obstante veredicto. No. 334, October Term, 1930. Judgment reversed and entered in favor of the defendant non obstante veredicto. No. 336, October Term 1930. Judgment reversed and entered in favor of the defendant non obstante veredicto.