Hayes v. Axelrod

• Decision Date: 09 January 1939
• Docket Number: 245
• Citation: 3 A.2d 346,332 Pa. 518
• Parties: Hayes v. Axelrod, Appellant
• Court: Pennsylvania Supreme Court

3 A.2d 346

332 Pa. 518

Hayes v. Axelrod, Appellant

No. 245

Supreme Court of Pennsylvania

January 9, 1939

Argued December 9, 1938.

Appeal, No. 245, Jan. T., 1938, from judgment of C.P. No. 1 Phila. Co., Dec. T., 1936, No. 5389, in case of James Hayes v. Jacob Axelrod. Judgment affirmed.

Trespass for personal injuries. Before LAMBERTON, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff in sum of $8,300. Defendant appealed.

Error assigned, among others, was refusal of judgment n.o.v.

The judgment is affirmed.

John B Martin, with him Duane, Morris & Heckscher, for appellant.

Edward A. Kelly, for appellee, was not heard.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. MAXEY, JUSTICE.

Plaintiff brought an action in trespass against defendant to recover damages for injuries sustained when he was struck by a truck driven by defendant.

At 8:30 a.m., on June 11, 1936, plaintiff, a milk driver salesman, stopped his horse and wagon in front of 105 Kenilworth Street, Philadelphia, heading west, "right close to the [north] curb," about 40 feet west of Front Street. He stopped at that address to make a milk delivery and to pick up some empty bottles across the street. The wagon was four feet ten inches wide from wheel to wheel. There was a door and a set of two steps in the middle of each side of the wagon, the top step being within the line of the wagon, and the bottom step extending three inches beyond the wheels. Plaintiff testified that while in the wagon he looked out of the back and saw no vehicles approaching. He then backed out of the wagon and paused on the top step of it. He remained in this position for a short time, assorting bottles and getting a milk bottle for delivery. His face was toward the interior of the wagon. He then put his foot on the lower step with his hands on each side of the door. While in this position the truck of the defendant, coming north on Front Street, made a left-hand turn into Kenilworth Street and its right fender struck defendant in the back and knocked him off the step of the wagon, seriously injurying him. Plaintiff testified that after the accident he was lying between the truck and the wagon, his leg being close to the truck's "right rear wheel," in front of it, and the remainder of his body "out from the truck." There was no contact between the milk wagon and the truck and there was no evidence that the truck was being driven at an excessive rate of speed.

One of plaintiff's witnesses testified that the truck "took a wide turn," and that after the accident it was about two and a half feet from the body of the milk wagon. This witness was asked: "How long a time expired between the time you saw him [the plaintiff] on the side of the wagon and the time when he was struck by the truck?" He replied: "It was not two solid minutes." He also said, and was corroborated by another witness, that plaintiff was on the step of the wagon when defendant's truck came around the corner.

Another witness for plaintiff testified that he saw plaintiff "get hit with the right fender of the truck" and "knocked off" of the step, that the milk wagon was the only vehicle on the street before the truck came around the corner, and that after the accident the front of the truck stopped about even with "the middle of the horse," and that the truck was 22 inches away from the wagon.

There was no oral testimony given as to the width of Kenilworth Street but the court below in its opinion said: "The photographs in evidence show that there was ample room for a vehicle to have passed in safety between him [plaintiff] and the south curb."

Defendant offered no evidence. The jury returned a verdict for plaintiff in the sum of $8,300. Defendant's motions for judgment n.o.v. and for a new trial were overruled. This appeal followed.

It is obvious that plaintiff made out a case of negligence against defendant. It was in evidence that the accident happened on a "clear day." In order to hit the plaintiff defendant's car must have been running closer to the milk wagon than is consistent...