Griffiths v. Lehigh Valley Transit Co.

• Decision Date: 12 March 1928
• Docket Number: 113,114
• Citation: 292 Pa. 489,141 A. 300
• Parties: Griffiths, Appellant, v. Lehigh Valley Transit Co.; Quinn, Appellant, v. Lehigh Valley Transit Co
• Court: Pennsylvania Supreme Court

141 A. 300

292 Pa. 489

Griffiths, Appellant, v. Lehigh Valley Transit Co.;

Quinn, Appellant, v. Lehigh Valley Transit Co

Nos. 113, 114

Supreme Court of Pennsylvania

March 12, 1928

Argued January 31, 1928

Appeals, Nos. 113 and 114, Jan. T., 1928, by plaintiffs, from judgment of C.P. Montgomery Co., June T., 1922, Nos. 81 and 82, on directed verdict for defendant, in cases of Robert W Griffiths v. Lehigh Valley Transit Co. and Edward L. Quinn v Lehigh Valley Transit Co. Affirmed.

Trespass for personal injuries. Before SMITH, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Judgment on directed verdict for defendant. Plaintiffs appealed.

Errors assigned were directions for defendant, quoting record.

Both judgments are affirmed.

Michael D. Hayes, with him Chas. D. McAvoy and Wilson & McAdams, for appellants. -- Plaintiffs were not guilty of contributory negligence: McClung v. Cab Co., 252 Pa. 478; Mackey v. Traction Co., 227 Pa. 482; McCracken v. Traction Co., 201 Pa. 378; Jennings v. R.R., 84 Pa.Super. 442; Flounders v. Traction Co., 280 Pa. 85; Naye v. Traction Co., 71 Pa.Super. 207; Armstrong v. Traction Co., 72 Pa.Super. 160; Becker v. Transit Co., 81 Pa.Super. 33; Smathers v. Ry., 226 Pa. 212; Francis v. Ry. Co., 66 Pa.Super. 497; Emmelt v. Transit Co., 89 Pa.Super. 417; Bowser v. Light Co., 267 Pa. 483; Sheetz v. Traction Co., 49 Pa.Super. 177; King v. Ry., 242 Pa. 497.

Franklin L. Wright, with him Charles Townley Larzelere, for appellee. -- It is the inflexible duty of the traveler to look for an approaching street car immediately before entering upon the track: Clifford v. Transit Co., 269 Pa. 304; Moses v. Ry., 258 Pa. 537; Ervay v. Traction Co., 240 Pa. 440; Smathers v. Ry., 226 Pa. 212; Timler v. Transit Co., 214 Pa. 475; McCracken v. Traction Co., 201 Pa. 378; Kanneberg v. Traction Co., 215 Pa. 555; Houston Bros. v. Traction Co., 28 Pa.Super. 374; Gilmore v. Traction Co., 26 Pa.Super. 97; Kern v. Traction Co., 194 Pa. 75; Shope v. Traction Co., 242 Pa. 207; March v. Traction Co., 209 Pa. 46; Trout v. Ry., 13 Pa.Super. 17; McCartney v. Traction Co., 27 Pa.Super. 222.

Appellants were engaged in a joint undertaking: Dean v. R.R., 129 Pa. 514; Dunlap v. Transit Co., 248 Pa. 130; Kirschbaum v. Transit Co., 73 Pa.Super. 536; Wade v. R.R., 220 Pa. 578; Martin v. R.R., 265 Pa. 282; Hill v. Transit Co., 271 Pa. 232.

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

OPINION

MR. JUSTICE SADLER:

On March 30, 1921, Griffiths and Quinn, were occupants of an automobile, driven by one Greenbaum, all engaged in the common business of salesmen. The first two named were injured in a collision with a car of the Lehigh Valley Transit Company in the village of Rittersville, located between Bethlehem and Allentown, and brought separate actions of trespass to recover for injuries sustained. The two suits were tried together, and terminated in binding instructions for defendant, and judgments were subsequently entered for it. Appeals were taken in both cases, and heard as one. A single opinion will suffice to dispose of both.

The William Penn Highway passes through the village, and on the north side are laid the tracks of the defendant. Beyond to the north is located a hotel, and to the west of it is an open yard forty-five feet wide, used by the public but not a part of the legally opened street. On the west side of this space is a store, facing the main thoroughfare, but having a side entrance on the hotel yard. The automobile in which the plaintiffs were riding was driven into this open space on the hotel side, turned, brought to the store building and parked with its front about six feet from the first westbound rail of the trolley track. The auto was left standing in that position while plaintiffs descended and entered the store on their merchandising errand.

The tracks of the defendant were placed some six feet from the hotel, which had constructed on its front an open seven-foot porch. The only obstructions to vision along the latter, as shown by the photographs, were four slender posts, though some testimony of plaintiffs would indicate that there was a built-up railing. At a point six feet from the track, where the auto was standing, there was a clear view toward Bethlehem along the track for about 800 feet. Assuming the porch to have been enclosed, sight could be had for a considerable distance. In front of the store was a telegraph pole, and the motor car was wedged against it when the collision occurred.

After the plaintiffs had completed their business in the store, the driver Greenbaum entered the car. Griffiths, one of the plaintiffs, cranked the machine, looked down the track, which could be clearly seen for about 800 feet, and saw nothing, as he testified. Quinn, the other plaintiff, who was first standing at the end of the radiator, also went forward to observe, and likewise found the track clear. All then entered the automobile, and, after a slight interval, started forward. The motor was almost instantaneously struck by a trolley car coming from Bethlehem, and pushed against the telegraph pole. Its movement forward had not exceeded six feet, and its front wheels just reached the first track. There can be but one conclusion, and that is that the occupants failed to look, for none of them, according to their testimony, saw the trolley car approaching, though it must have been plainly visible.

There is no evidence which would justify a finding that the trolley car was moving at an excessive speed, as averred. A movement of 15 to 20 miles an hour in suburban territory (McKee v Harrisburg Traction Co., 211 Pa. 47) would not show this. The physical facts negative any such contention, for after the collision the damaged motor was found fastened against the car at the telegraph pole. There was testimony that later the trolley car was found standing one length beyond, but this was evidently the result of its movement forward after the accident. Nor was there sufficient evidence to show a failure to give a proper signal. The car was not approaching a street crossing, but passing the open hotel yard, though permissively used by the public. Griffiths testified he heard a whistle just as the auto reached the track. But whether there was any proof of lack of due care is immaterial, under the facts in this case, for the contributory negligence of pl...