Opinion
October 18, 1934.
December 18, 1934.
Negligence — Automobiles — Trolley car — Plaintiff suddenly confronted by vehicle — Driving on car tracks to avoid vehicle — Distance from oncoming trolley car — Question for jury.
In an action of trespass to recover for damages sustained by plaintiff when the automobile which he was driving was struck by defendant's trolley car, evidence that as plaintiff was proceeding on the highway a wagon came out unexpectedly from a driveway on the street and turned directly in front of plaintiff's car, that plaintiff glanced in his mirror and saw the trolley car crossing an intersection 100 feet behind him, that he thereupon pulled over to the right onto the trolley tracks to avoid collision with the team coming toward him, and that the oncoming trolley car struck plaintiff's car after its right front wheel had reached the far rail, is sufficient to support findings of the trial judge that the defendant was negligent and that the plaintiff was not guilty of contributory negligence.
Appeal No. 246, October T., 1934, by Philadelphia Rapid Transit Company from judgment of C.P., No. 4, Philadelphia County, December T., 1929, No. 821, in the case of Murray Stoll v. Elizabeth Curry, Executrix of John Curry, deceased, et al.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Trespass for personal injuries. Before STERN, P.J., without a jury.
The facts are stated in the opinion of the lower court, STERN, P.J., as follows:
The plaintiff was driving an automobile north on the west side of 13th Street. A wagon came out unexpectedly from a driveway on the east side of 13th Street, and turned left over to the west side and directly in front of plaintiff's automobile. The plaintiff testified (testimony page 4) that he glanced in his mirror and saw a trolley car (which previously had been standing on the south side of Callowhill Street) then crossing Callowhill Street. He, the plaintiff, was then 100 feet above Callowhill Street (testimony page 2). He thereupon pulled over to the right into the trolley tracks to avoid collision with the team coming toward him as aforesaid. The oncoming trolley car struck the plaintiff's automobile after his right front wheel had reached the far rail (testimony p. 10).
Accepting this version of the occurrence, the trial judge found that the defendant Transit Company was negligent and that the plaintiff was not guilty of contributory negligence. The plaintiff, being 100 feet from the trolley car, had a right to drive into the track, especially to avoid the situation which confronted him in the oncoming of the team. He naturally could not drive sharply across the tracks at right angles, but had to go diagonally in a northeasterly direction. The motorman, with a distance of 100 feet in which to see what was going on and to avoid running into the plaintiff, was obviously negligent and the plaintiff was just as obviously free of contributory negligence. That he had to cover four or five feet in a diagonal direction in order to reach the track was of no significance with the trolley car 100 feet away. He was not obliged to stand still and allow the team coming south to threaten his safety.
The court found for plaintiff in the amount of $190, and judgment was entered on the findings. Defendant appealed.
Error assigned, among others, was judgment.
Philip Price, and with him Bernard J. O'Connell, for appellant.
Charles Polis, and with him Philip S. Polis, for appellee.
Argued October 18, 1934.
The judgment is affirmed on the opinion of Judge STERN.