Lessig v. Reading Transit & Light Co.
| Decision Date | 18 April 1921 |
| Docket Number | 410 |
| Citation | 113 A. 381,270 Pa. 299 |
| Parties | Lessig v. Reading Transit & Light Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 28, 1921
Appeal, No. 410, Jan. T., 1921, by defendant, from judgment of C.P. Berks Co., Aug. T., 1919, No. 127, on verdict for plaintiff, in case of Irvin F. Lessig v. Reading Transit & Light Co. Reversed.
Trespass for personal injuries. Before ENDLICH, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $4,412.50. Defendant appealed.
Error assigned, among others, was refusal of defendant's motion for judgment n.o.v.
The judgment is reversed and is here entered for the defendant non obstante veredicto.
C. H Ruhl, for appellant, cited: Bready v. Transit Co., 68 Pa.Super. 298; Keenan v. Traction Co., 202 Pa. 107; Kemmler v. R.R., 265 Pa. 212; Wolf v. Traction Co., 252 Pa. 448; Moyer v. Traction Co., 221 Pa. 147; Funk v. Traction Co., 175 Pa. 559; Mease v. Traction Co., 208 Pa. 434; Reid v. Transit & Light Co., 66 Pa.Super. 101; Clift v. Traction Co., 52 Pa.Super. 502; Moser v. Traction Co., 205 Pa. 481; Boring v. Traction Co., 211 Pa. 594.
John B. Stevens, for appellee, cited: Martin v. Traction Co., 261 Pa. 96; Patterson v. Rys. Co., 260 Pa. 214.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SADLER and SCHAFFER, JJ.
This suit is for damages sustained in a collision between a trolley car and an automobile. Defendant has a single track electric railway, extending from Penn Square southerly along the center of Fifth Street in the city of Reading, and crossing Cherry Street at right angles; the latter being a narrow street, about one hundred and fifty feet south of Penn Square, and not a stopping place for trolley cars. The grade descends to the south and there is a cartway twenty feet wide on each side of the track. On the evening of February 16, 1916, plaintiff drove his Ford coupelet, a closed car, down Fifth Street and stopped for gas near the west curb at a tank twenty-five feet south of Cherry Street, and then drove out onto the track where his auto was struck by a southbound trolley car and he was thrown to the pavement and seriously injured: Plaintiff testified that he got out of his auto at the gas tank and just before starting from there looked up the track but saw no car, and looked again with the same result just before driving upon the track, where his view was somewhat limited by the side of his auto and the direction he was moving; that he then turned south and drove along the track about fifty feet when the car struck his auto in the rear. This statement that plaintiff turned and drove along the track before the collision is contradicted by all other witnesses to the accident, who agree that he drove in a southeasterly direction from the gas tank and was struck upon the left side of his auto just as he entered upon the track. Their testimony is corroborated by the undisputed fact, shown by witnesses and by photographs, that the rear of the auto is without a mark, while its left side, back of the front wheel, is badly battered as a result of the collision. It is also corroborated by the undisputed testimony of plaintiff's witness, Lloyd, that broken glass, dirt, etc., were found on the ground where the evidence shows the auto first came to the track. The car had stopped at Penn Square, where it was boarded by some sixty passengers; then came down and across Cherry Street at the speed of eight or ten miles an hour. There is some dispute as to the sounding of the gong, but none of the motorman's testimony that he reversed the power when he saw the danger and could not stop in time to avoid the collision. The car was lighted, including the headlight, and while standing at Penn Square, or moving from there to the place of accident, could readily have been seen by appellee. The trial judge submitted the case to the jury, who found for plaintiff, and this appeal by defendant from judgment entered thereon raises the single question as to whether appellant on the whole record is entitled to judgment.
This question must be answered in the affirmative, on the ground of plaintiff's contributory negligence. As a general rule a suitor is entitled to have his case submitted to the jury on his own interested testimony although contradicted by disinterested witnesses, the remedy for a perverse verdict being a new trial; where, however, as here, the party's own testimony stands not only opposed to that of several disinterested witnesses, but is shown to be untrue by incontrovertible physical facts, the case is different. It is vain for a man to say his auto was struck in the back when the only injury thereto is at the side near the front wheel or to insist the collision was at one place when the broken glass and other unmistakable evidences thereof are at another. A court cannot accept as true that which the indisputable evidence demonstrates is false. As was stated in the opinion of this court by Mr. Justice (later Chief Justice) BROWN, in Bornscheuer v. Traction Co., 198 Pa. 332, 334: In the present case plaintiff's testimony cannot be accepted in the face of the infallible physical facts. Elliott on Evidence (sec. 39) says, ...
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