Bready v. Philadelphia Rapid Transit Co.

• Decision Date: 13 December 1917
• Docket Number: 136-1916
• Citation: 68 Pa.Super. 298
• Parties: Bready, Appellant, v. Philadelphia Rapid Transit Company
• Court: Pennsylvania Superior Court

68 Pa.Super. 298

Bready, Appellant, v. Philadelphia Rapid Transit Company

No. 136-1916

Superior Court of Pennsylvania

December 13, 1917

Argued December 5, 1916

Appeal by plaintiff, from judgment of C.P. Montgomery Co.-1914, No 242, for defendant non obstante veredicto in case of George J. Bready v. Philadelphia Rapid Transit Company.

Trespass to recover damages for personal injuries, and injuries to an automobile. Before Swartz, P. J.

At the trial the jury returned a verdict for $ 217.75. Subsequently the court entered judgment for defendant non obstante veredicto.

Error assigned was in entering judgment for defendant non obstante veredicto.

Ardemus Stewart, for appellant.

Franklin L. Wright, with him C. Townley Larzelere and Nicholas H Larzelere, for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

ORLADY J.

The judgment in this case was entered for the defendant non obstante veredicto and the plaintiff brings this appeal.

The plaintiff's right to the verdict is to be determined by his own testimony, which, taken with that of his witnesses establishes facts which must result in our holding that he was guilty of such contributory negligence that he should not recover. He was familiar with the crossing he attempted to enter and knew it had special dangers on account of hedges, poles, etc., which obstructed his view, and that it was liable to be used any moment by a trolley car. He approached it on a straight incline in his automobile, and when fifty feet distant therefrom, while running at the rate of fifteen miles an hour, slowed down so as to enter upon the crossing at a speed of six to eight miles an hour, without stopping. At that moment the trolley car was at least 100 feet from it, while he was from six, eight or ten feet from the first rail. He listened for a car, but did not stop. He was an experienced driver and had his car under perfect control. When he saw the trolley car, as he states, " I gave my car all the force I could and shot across to get away from it." The trolley car was drifting down grade at a rapid rate of speed. The duty of the plaintiff under such circumstances and the liability of the defendant have been frequently declared; following our own cases we feel obliged to affirm this judgment in favor of the defendant.

In Clift v. Philadelphia & W. C. Co., 52 Pa.Super. 502 the authorities are reviewed by our Brother Porter, as follows: " When the driver of a team, about to cross the tracks of a passenger railway constructed upon a public highway, fails to look immediately before going upon the track, he is guilty of contributory negligence: Timler v. Philadelphia Rapid Transit Co., 214 Pa. 475; McCracken v. Consolidated Traction Company, 201 Pa. 378; Bobb v. Union Traction Company, 206 Pa. 265; Smathers v. P. & B. St. Ry. Co., 226 Pa. 212. This rule applies to the crossing of such railway tracks in the country, as well as in the cities: Keenan v. Union Traction Company, 202 Pa. 107. The reasons for the rule, its nature and necessity, have been so fully considered in the cases cited that further discussion is unnecessary. The learned judge of the court below felt constrained to hold that the rule had been modified, or its application limited, by the decisions on Henderson v. United Traction Company, 202 Pa. 527; Mackey v. P. & W. C. Trac. Co., 227 Pa. 482, and Wright v. Pittsburg Rys. Co., 223 Pa. 268; but a careful study of those cases will disclose no intimation of a departure from the well established rule. In no one of those cases did it appear that the plaintiff had affirmatively proved that the person driving the team had failed to exercise proper vigilance and continued to look for an approaching car down until he reached and entered upon the track. In Mackey v. P. & W. C. Traction Co., 227 Pa. 482, it was said: " It may be presumed in the absence of any testimony to the contrary that he also continued to look for an approaching car, until his leading horses were entering upon the line of the second track. In the absence of evidence indicating neglect of duty, negligence may not be presumed, but when the negligence of a plaintiff is established out of his own mouth, it is for the court to enforce the rule." The rule is further summarized by our Brother Trexler, in Miller, Etc., Storage Co. v. Philadelphia...