Banks v. M. L. Shoemaker & Co.

• Decision Date: 18 February 1918
• Docket Number: 231
• Citation: 103 A. 734,260 Pa. 280
• Parties: Banks v. Shoemaker & Company, Ltd., Appellant
• Court: Pennsylvania Supreme Court

103 A. 734

260 Pa. 280

Banks v. Shoemaker & Company, Ltd., Appellant

No. 231

Supreme Court of Pennsylvania

February 18, 1918

Argued January 17, 1918

Appeal, No. 231, Jan. T., 1917, by defendant, from judgment of C.P. No. 2, Philadelphia Co., Dec. T., 1916, No. 4091, on verdict for plaintiff in case of Robert Banks v. M.L Shoemaker & Co., Ltd. Affirmed.

Trespass for personal injuries. Before ROGERS, J.

From the record it appeared that the collision occurred at a regular foot crossing at a street intersection.

Further facts appear by the opinion of the Supreme Court.

Verdict for plaintiff for $8,000 and judgment thereon. Defendant appealed.

Error assigned, among others, was in refusing defendant's motion for judgment n.o.v.

The assignments are all overruled and the judgment is affirmed.

Ruby R Vale, for appellant. -- There was no evidence of negligence on the part of defendant's driver.

Plaintiff's negative testimony that he did not hear any warning given cannot prevail against the overwhelming and positive testimony of two witnesses that the driver's duty was performed: Keiser v. Lehigh Valley R.R. Co., 212 Pa. 409; Anspach v. Philadelphia & Reading Ry. Co., 225 Pa. 528; Davis v. Osborn, 62 Pa.Super. 291; Hall v. West Jersey & Seashore R.R. Co., 241 Pa. 399.

Plaintiff was guilty of contributory negligence: Black v. Philadelphia Rapid Transit Co., 239 Pa. 463; Harris v. Commercial Ice Co., 153 Pa. 278; Kaufman v. Nelson, 225 Pa. 174; King v. Thompson, 87 Pa. 365; Robb v. Connellsville Boro., 137 Pa. 42.

Francis M. McAdams, with him William H. Wilson, for appellee. -- The case was for the jury. Vehicles have the right of way on the portion of the highway set aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestrians: Virvilio v. Walker, 254 Pa. 241, 245; Lorah v. Rinehart, 243 Pa. 231; Dougherty v. Davis, 51 Pa.Super. 229; Kerbaugh v. U.S. Express Co., 58 Pa. 550; Van Winkler v. Morris, 46 Pa.Super. 142.

The fact that the accident happened at a street which does not run all the way through is immaterial, because the rights and duties are the same thereon as on a street which completely intersects another: Lorah v. Rinehart, 243 Pa. 231; Miller v. Tiedeman, 249 Pa. 234; Wright v. Pittsburgh Rys. Co., 223 Pa. 268; Kennedy v. Consolidated Traction Co., 210 Pa. 215.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

Plaintiff was knocked down and injured by a motor truck belonging to and under the control of defendant company; he sued in trespass and recovered a verdict, upon which judgment was entered. Defendant has appealed, and its assignments of error all center around the refusal of the court below to enter judgment n.o.v.

In view of the verdict, it may be stated that the accident happened under the following circumstances: On a clear day, October 7 1916, about three o'clock, plaintiff came out of a store on the north side of Girard avenue and proceeded to cross that thoroughfare, walking southward upon a footway leading to Earl street, which latter runs southward at right-angles to Girard avenue, from the south side thereof, but does not extend northward therefrom. Girard avenue at this point is 120 feet wide from house to house and 88 feet between curbs, and the center is occupied by a double-track car line on each side of which is a driveway about thirty-five feet wide, the northern one being for westbound and the southern for eastbound traffic. There were no vehicles of any sort, other than defendant's machine, moving upon the street at or about the time of the accident. When plaintiff reached the center of the avenue, he...