Kirschbaum v. Philadelphia Rapid Transit Co.

• Decision Date: 28 February 1920
• Docket Number: 150-1919
• Citation: 73 Pa.Super. 536
• Parties: Kirschbaum v. Philadelphia Rapid Transit Co., Appellant
• Court: Pennsylvania Superior Court

73 Pa.Super. 536

Kirschbaum v. Philadelphia Rapid Transit Co., Appellant

No. 150-1919

Superior Court of Pennsylvania

February 28, 1920

Argued October 18, 1919

Appeal by defendant, from the judgment of Municipal Court of Philadelphia, July Term, 1918, No. 175, in the case of Joseph Kirschbaum v. Philadelphia Rapid Transit Company.

Trespass to recover damages for personal injuries. Before Crane, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff for $ 250 and judgment thereon. Defendant appealed.

Error assigned was refusal of defendant's motion for judgment non obstante veredicto.

Harold B. Beitler, for appellant. -- The defendant was guilty of contributory negligence: Dunlap v. P.R. T. Co., 248 Pa. 130; Hardie v. Barrett, 257 Pa. 42; Laudenberger v. Transit Co., 261 Pa. 288; Kleiman v. P.R. R. Co., 66 Pa.Super. 295; Bernstein v. P.R. R. Co., 252 Pa. 581.

W. H Caldwell, and with him J. Gowen Roper, for appellee.

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

OPINION

TREXLER J.

The plaintiff was injured while riding with a coemployee in their employer's wagon, driven by the coemployee, on their way to attend to the employer's business. They had proceeded westwardly along the north track on Snyder avenue, and at Passyunk avenue they proceeded to turn southwardly on said avenue across the south track on Snyder avenue. As they were about to turn out of the westbound track, both the driver and the plaintiff saw an eastbound street car approaching at a distance of 75 feet. The plaintiff did not say or do anything to prevent his fellow-employee from driving in front of the approaching car. The horses were walking. The testimony of the plaintiff is to the effect that the car was approaching fast. The learned trial judge assumed that the driver of the team was negligent in proceeding to cross the track in front of the advancing car, and in this he was clearly right. He left it to the jury to decide whether the plaintiff was guilty of contributory negligence. This we think was error. Although the driver's negligence should not be imputed to the plaintiff, the latter was not relieved from all responsibility. It was incumbent upon him to exercise reasonable care, and not sit quietly by and see danger that was plainly imminent, and not take means of escaping it. This was the rule laid down in Dunlap v. Phila. R. T. Co., 248 Pa. 130, and has been followed down to the very late case of Martin v. Penna. R. R. Co., 265 Pa. 282. The plaintiff considered the driver a careful driver, and therefore, joined him in testing the danger, and in doing this he is responsible for his own act. The danger was patent to them both, with the car 75 feet away they attempted to cross, and the event proved their judgment was bad for the car struck the rear of the wagon. In Martin v. Penna. R. R. Co., supra, the decisions are reviewed and the rule is stated to be that the passenger is not required to exercise the same high degree of care and constant watchfulness as the driver of the vehicle, but " he must exercise a reasonable degree of watchfulness and when occasion requires warn the driver of threatened danger, and he may, as matter of law, be chargeable with contributory negligence even where he has done nothing." It is true that the opinion in Hermann v. R.I. Co., 36 R.I. 447, quoted with approval in Vocca v. Penna. R. R. Co., 259 Pa. 42, states, " While it is the duty of such guest or passenger not to submit himself and his safety solely to the prudence of the...