Opinion
January 6, 1932.
February 3, 1931.
Negligence — Street railways — Passenger — Collision between truck and trolley car — Evidence — Presumption — Nonsuit.
1. In an action by a passenger against a street railway company for injuries caused by a collision between a truck and a trolley car in which plaintiff was riding, mere proof of a collision between the truck and car raises no presumption of negligence against the railway company. [229]
2. In such case, a nonsuit is properly entered in favor of the railway company where there is no evidence of the position of the truck before the collision, and there was proof that the car was apparently under the control of the motorman. Trolley had right of way. [229]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
Appeal, No. 343, Jan. T., 1931, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1929, No. 3227, refusing to take off nonsuit, in case of Walter F. Welsh v. Jump House Wrecking Co. of Pennsylvania and Philadelphia Rapid Transit Company. Affirmed.
Trespass for personal injuries. Before DAVIS, J.
The opinion of the Supreme Court states the facts.
Nonsuit; refusal to take it off. Plaintiff appealed.
Error assigned was order, quoting record.
Henry A. Frye, with him Fletcher W. Stites, for appellant.
Chester N. Farr, Jr., with him Bernard J. O'Connell, for appellee.
Argued January 6, 1932.
Plaintiff appeals from refusal of the court below to take off a nonsuit entered in an action in trespass to recover for injuries sustained by him as the result of a collision between a truck of the Jump House-Wrecking Co. with a trolley car of the Philadelphia Rapid Transit Co., claiming the collision was caused by negligent operation of the two vehicles. The nonsuit was entered as to the Philadelphia Rapid Transit Company and a verdict rendered for the other defendant.
The accident occurred on the morning of June 16, 1927, while plaintiff was a passenger in a Philadelphia Rapid Transit Co. trolley car on Woodland Avenue, east of 43d Street, in the City of Philadelphia, the car running northeasterly. Plaintiff testified he was reading a newspaper and did not observe the movement of the car until he felt the brakes applied, and immediately a crash followed, which threw him forward off the lengthwise seat on which he was sitting, causing the injuries for which he asks compensation. Plaintiff's only other witness to the accident testified that there was a considerable down grade on this section of Woodland Avenue, that the trolley had been running about thirty miles an hour, and that as it approached 43d Street the brakes were applied, although the car did not stop there. The collision occurred about 35 feet east of 43d Street, and the testimony shows that when the trolley car came to a stop the Jump truck was wedged between it and a Breyer ice cream truck parked against the curb at this point. We find no evidence as to the position or movement of the truck before the collision, and the court below properly states that "The mere proof of a collision raises no presumption of negligence against the defendant railway company." Since the trolley car had the right of way (Ruthberg v. P. R. T. Co., 300 Pa. 536, 538-9), was apparently under the control of the motorman, and negligence on his part has not been proved, the court below correctly entered a nonsuit as to the transit company.
The order of the court below is affirmed.