Kilgallen v. Philadelphia Rapid Transit Co.

• Decision Date: 27 May 1930
• Docket Number: 201
• Citation: 300 Pa. 451,150 A. 746
• Parties: Kilgallen v. Philadelphia Rapid Transit Co., Appellant
• Court: Pennsylvania Supreme Court

150 A. 746

300 Pa. 451

Kilgallen v. Philadelphia Rapid Transit Co., Appellant

No. 201

Supreme Court of Pennsylvania

May 27, 1930

Argued April 24, 1930

Appeal, No. 201, Jan. T., 1930, by defendant, from judgment of C.P. No. 5, Phila. Co., June T., 1929, No. 12153, on verdict for plaintiff, in case of Patrick Kilgallen v Philadelphia Rapid Transit Co. Reversed.

Trespass for personal injuries. Before SMITH, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $5,000. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment is reversed and is here entered for defendant.

Marshall A. Coyne, for appellants. -- Plaintiff was guilty of contributory negligence: Magyar v. R.R., 294 Pa 585; Rothweiler v. Transit Co., 93 Pa.Super. 369; Chew v. Transit Co., 90 Pa.Super. 155.

Fletcher W. Stites, for appellee. -- Where workmen are engaged in work which requires their presence on trolley car tracks or the tracks of a railroad and also demands their full attention in performance of their duties, the failure of a motorman or engineer to sound a gong or warning of the approach of the train or trolley car is sufficient evidence of negligence to require the submission of the case to the jury: Chew v. P.R.T., 90 Pa.Super. 155; Diehl v. R.R., 254 Pa. 404; Craven v. Rys., 243 Pa. 619; Hugo v. R.R., 238 Pa. 594; O'Malley v. Traction Co., 191 Pa. 410; Owens v. Ry., 155 Pa. 334; Van Zandt v. R.R., 248 Pa. 276.

The question of plaintiff's contributory negligence was for the jury.

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

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff was employed by a firm of contractors engaged in building a sewer on Main Street in the Borough of Darby. His duty required him to keep watch at night over the red warning lanterns which were placed along the open trench to see that they were lighted. The defendant maintains two lines of track in the bed of Main Street, the south one for eastbound cars and the north one for westbound. The trench was dug on the north side of the westbound track about 18 inches from the north rail and the lanterns were placed on boards laid across the excavation at about that distance clear of the track. On the night he was injured, about 10:30 o'clock, he was on the south side of Main Street (owing to the building of the sewer, traffic on the north side having been shut off), and noticed that one or more of the lanterns had gone out. He crossed the street from the south to the north side, passing over both tracks, and was engaged in placing a lighted lantern on the trench, when he was struck and injured by one of defendant's cars running on the westbound track. He testified that when he left the south side of the street he looked for a car on the westbound track and saw none, that he also looked when he got on the north side of the car tracks and did not see any. His view in the direction from which the car approached was an unobstructed one for about 300 feet, at which point there was a curve in the track. A witness called by him, who was driving an automobile along Main Street at the moment of the accident, and saw it, observed the oncoming car from the time it rounded the curve. Plaintiff said he was standing in the space between the north rail and the excavation, which as before stated, was about 18 inches in width, and was leaning over to place the lamp in position on the plank when he heard the car coming, "and I lifted myself up and the trolley car was right on me. I swung myself around to get clear. Then I was struck." He said he had no knowledge of the approach of the car until he heard the rumble "right on top" of him. It struck him on the hip. He testified that the car gave no signal of its approach. He had been working on the job for two weeks and knew that cars passed on the westbound track every five minutes. From this recital of the circumstances of the accident taken from plaintiff's own testimony, it is obvious that while he was standing outside of the track, in the act of stooping over to place the lantern in position he brought himself within the sweep of the overhang of the car and thus caused his contact with it. Whether the motorman saw him does not appear. Plaintiff did not call him as a witness and defendant offered no testimony.

Why plaintiff did not observe the approaching car it is difficult to conceive unless he was inattentive to his surroundings. There is no claim that its headlight was not lighted or that the lights in the car were not burning. The car was within his plain view for 300 feet. He was outside the rail and the slightest movement would have put him beyond the line of danger. This is not a case where workmen are engaged on or close to railway tracks and where the operator of the car with knowledge of their presence must be watchful to avoid injuring them, such as these cases cited by plaintiff: O'Malley v. Scranton Traction Co., 191 Pa. 410, where a car of the defendant ran into a gang of workmen engaged in paving the street; or Owens v. Peoples Passenger Ry., 155 Pa. 334, where plaintiff, an employee of the city, was laying a water pipe under defendant's track and in doing the work was compelled to stand in the track with his back toward approaching cars, in which it was shown that on all other occasions than that of the accident the defendant's employees had notified the city's employees of the approach of the cars; or Van Zandt v Phila., Balto. &...