Weaver v. Pickering

• Decision Date: 07 January 1924
• Docket Number: 87
• Parties: Weaver, Appellant, v. Pickering
• Court: Pennsylvania Supreme Court

123 A. 777

279 Pa. 214

Weaver, Appellant, v. Pickering

No. 87

Supreme Court of Pennsylvania

January 7, 1924

Argued October 19, 1923

Appeal, No. 87, Oct. T., 1923, by plaintiff, from order of C.P. Allegheny Co., Jan. T., 1921, No. 433, refusing to take off nonsuit, in case of Thomas W. Weaver v. Moses Pickering. Affirmed.

Trespass for personal injuries. Before CARNAHAN, J.

The opinion of the Supreme Court states the facts.

Nonsuit. Refusal to take off. Plaintiff appealed.

Error assigned was order, quoting record.

The order appealed from is affirmed.

Blythe S. Weddell, of Redden, Weddell & Hosack, for appellant. -- It was error to enter a nonsuit: Lamont v. Express Co., 264 Pa. 17; Mackin v. Patterson, 270 Pa. 107; Hanley v. Bakey, 77 Pa.Super. 36; Lewis v. Wood, 247 Pa. 545.

William A. Challener, for appellee, was not heard.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

Penn Avenue extends through the City of Pittsburgh in an easterly and westerly direction and in the center thereof is a double track street railway. The current of traffic on the south side of the street is easterly and on the north side westerly. At a point some distance east of Ninth Street the avenue is crossed at right angles by an open street called Garrison Alley. On the morning of March 1, 1920, the plaintiff, Thomas W. Weaver, a traveling salesman, walked east along the south side of the avenue until he crossed the alley, where he looked back but saw no eastbound vehicles approaching. He continued a short distance further east until he saw an opening between automobiles standing apparently blocked, on the north side of the avenue. To reach this opening he turned north to cross the avenue, without looking east or again west. As he first left the walk and stepped into the cartway, his view easterly was obstructed by an autotruck standing near the south curb, which he passed and then walked out onto the street-car tracks, a distance of some eight or ten feet, and was immediately struck and injured by defendant's westbound automobile, which had turned into the car tracks to pass the line of standing automobiles. Plaintiff neither looked east nor west as he stepped into the cartway, nor until just as he was struck. The automobile was in plain sight as he came out from the rear of the truck and stepped in its path. The trial judge granted a compulsory nonsuit on the ground of contributory negligence; this appeal by plaintiff is from the court's order refusing to take off the same.

The case was rightly decided. While a pedestrian may cross a street between intersections, as was attempted here, yet when he does so he must exercise a higher degree of care than at a public crossing: Virgilio v. Walker, 254 Pa. 241; Arnold v. McKelvey, 253 Pa. 324. In the instant case plaintiff seemed oblivious to danger, and chose to walk by faith across a busy city street; in so doing, he assumed the risk. In Harris v. Commercial Ice Co., 153 Pa. 278 280, Justice MITCHELL, speaking for the court, says: "People are not entitled to walk the streets with closed eyes and inattentive minds. . . . Even on a city street a man must heed what he is doing and where he is going, or he cannot complain of the consequences. This is the rule even on the sidewalk, -- Robb v. Connellsville Borough, 137 Pa. 42, -- and when he steps into the cartway he is equally bound to remember that horses and vehicles have also a right-of-way there, to which he must give due attention or he will be barred of complaint as to the consequences." Owing to the constant use of streets by motor vehicles, that language has greater force now than it had thirty years ago. The present condition of traffic is such that a pedestrian who fails to look in both directions before attempting to cross a two-way city street between intersections must be held guilty of contributory negligence. As stated in Anderson v. Wood, 264 Pa. 98, 100, the pedestrian must have due regard to the condition of the traffic and observe the same to see if there is an opportunity to cross before entering the cartway; and see Gavin v. Phila. Rapid Transit Co., 271 Pa. 73; Lorah v. Rinehart, 243 Pa. 231. The rule requiring the traveler to look immediately before entering upon a street railway track, is equally applicable to entering upon the cartway of a busy street, between intersections, as the danger is no less. As stated...