Mars v. Philadelphia Rapid Transit Co

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE MAXEY:
• Citation: Mars v. Philadelphia Rapid Transit Co, 303 Pa. 80, 154 A. 290 (Pa. 1931)
• Decision Date: 03 February 1931
• Docket Number: 339
• Parties: Mars, Appellant, v. Philadelphia Rapid Transit Co

154 A. 290

303 Pa. 80

Mars, Appellant, v. Philadelphia Rapid Transit Co

No. 339

Supreme Court of Pennsylvania

February 3, 1931

Submitted January 6, 1931.

Appeal, No. 339, Jan. T., 1930, by plaintiff, from judgment of C.P. No. 5, Phila. Co., March T., 1930, No. 1966, for defendant n.o.v., in case of Helen E. Mars v. Philadelphia Rapid Transit Co. Reversed.

Trespass for death of plaintiff's husband. Before ALESSANDRONI, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff. Judgment for defendant n.o.v., in opinion by MARTIN, P.J. Plaintiff appealed.

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

The judgment of the court below is reversed and judgment is directed to be entered on the verdict.

Ralph B. Umsted, of Umsted & Wolfe, for appellant. -- The negligence of defendant consisted, inter alia, of defendant's motorman turning off the headlight which would show the road and the track in advance of the car 150 feet or more, without slackening the speed of his car which was 25 miles an hour, particularly in view of the fact that he knew and had a right to expect pedestrians to be on or near the track in front of him: Wilhelm v. Ry., 281 Pa. 69; Robinson v. Twp., 90 Pa.Super. 139; Algard v. Transit Co., 266 Pa. 390; Foster v. Power & Light Co., 100 A. 833.

Defendant's car killed deceased: Davis v. Davis, 80 Pa.Super 343.

The deceased was not negligent: Donahue v. P.R.T., 293 Pa. 253; Gilmore v. Ry., 153 Pa. 31; Gilmartin v. Transit Co., 186 Pa. 193; Warner v. Ry., 141 Pa. 615.

Marshall A. Coyne, for appellee, cited: Kilgallen v. Transit Co., 300 Pa. 451; Walker v. Traction Co., 97 Pa.Super. 7.

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

OPINION

MR. JUSTICE MAXEY:

At about 7:15 P.M., February 10, 1930, defendant's trolley car was proceeding south on the so-called Easton Road, located in the section known as North Willow Grove, in the County of Montgomery, at the rate of about 25 miles an hour. It was equipped with a headlight which gave the motorman a view of the tracks for a distance of 150 feet. When the motorman was about 200 yards from the point where the occurrence herein discussed took place, he switched off the headlight and pet on the "dimmer." The latter gave him a view of the track for about 15 or 20 feet ahead. He did this for the purpose of accommodating several northbound motorists who were approaching on the above road parallel to the street car tracks. When the motorman again switched on his headlight, he saw before him at a distance of 25 feet, the body of a man lying between the two rails. This man was on his left elbow, apparently attempting to rise. The motorman applied his brakes, but before the car came to a stop he had struck the man and dragged him for a distance of 23 feet, the wheel fender pushing the body along. A short time afterward, the body was removed from under the car and placed at the side of the track, where the man was pronounced dead. This man was Elwood F. Mars, the husband of the plaintiff. No autopsy was had and there was no medical testimony as to the cause of death. The only physician who testified described the injuries sustained by the deceased as follows: "He had a head injury, . . . on the left side, from which he apparently had quite a little bleeding. . . . He had a rather severe laceration of the scalp." This same witness testified that he was in no position to say what the cause of death was. An examination of the ground, within an hour after the deceased was struck, and also on the following morning, revealed a pool of blood from six to seven inches in diameter at the place where the deceased was struck, and a larger pool of blood 23 feet farther south. These two pools were connected by a streak of blood. There was no blood outside of the tracks.

The case was tried and a verdict was returned for the plaintiff for $16,500. The court in banc later entered judgment in favor of the defendant, notwithstanding the verdict. The court based its judgment n.o.v. on two propositions: First, that the motorman was not guilty of any act of negligence in using bright lights and dim lights alternately when the exigencies of the case demanded them. The second was that, under the facts in the case, there was no proof that death was due to the negligence of the defendant.

As to the first proposition, we think that under the facts the question of the defendant's negligence was for the jury. The car was traveling at the rate of 25 miles an hour, and, according to the motorman, when only the dimmers were on, objects were visible "in dark places" not over 20 feet ahead. A car traveling at the rate of 25 miles an hour is traveling at the rate of 36 2/3 feet per second. For a motorman to drive his car ahead at this rate of speed into a darkness which is only 20 feet distant is an act that any jury would be justified in characterizing as negligence. It bears close kinship to the proverbial "leap in the dark." Passengers in a trolley car traveling at the speed stated would be ill at ease if they knew that the motorman was unable to see objects on the track more than 20 feet distant. Not only might a human being, as in the present case, be on the track, but a rail might be displaced, or there might be a fallen pole or tree or other obstruction on the track which would be sufficient when the car encountered it to derail or wreck the car. As to whether or not the act of driving a car at the rate of 25 miles an hour, with the headlight switched off and the dimmers switched on, which dimmers threw a light in front of the car not over 20 feet, is an act which under the circumstances constituted want of care, is indicated by the legislative expression as to how far a light on an automobile must, in order to insure human safety, project its beams ahead. For example, the Motor Code of May 1, 1929, P.L. 905 (paragraph a, section 803), provides as follows: "The head lamps or head lamp of motor vehicles shall be so constructed, arranged, adjusted and attached that, except as provided in this act, they will, at all times mentioned in this act, and under normal atmospheric conditions, and on a level road, produce a driving light sufficient to render clearly discernible all vehicles, persons or substantial objects 160 feet ahead." The act further provides (paragraph e, section 803): "Whenever a motor vehicle meets another vehicle on any highway, it shall be permissible to tilt the beams or beam of the head lamps or head lamp downward, or to substitute therefor the light from auxiliary driving lamps, subject to the requirement that the tilted beams shall give sufficient illumination, under normal atmospheric conditions, and on an approximately level highway, to render clearly discernible vehicles, persons, or substantial objects 75 feet ahead of the motor vehicle, but shall not project a glaring or dazzling light to persons in front of the motor vehicle."

In other words, in the circumstances under which the street car referred to in this case was proceeding, that is, under normal atmospheric conditions, and on an approximately level highway, the legislature of Pennsylvania has decreed that no automobile shall proceed, even temporarily, with lights that do not illuminate the road so as to render clearly discernible vehicles, persons or substantial objects 75 feet ahead of the motor vehicle. While, of course, this Motor Code does not apply to the operation of street cars, the sections of the Code cited by us indicate that in the opinion of the legislature no motor vehicle can proceed with safety at any speed, for even a temporary period, unless substantial objects are visible at least 75 feet ahead of the motor vehicles. This is essential to the safety of vehicles, of occupants and of others. The powerful headlights of locomotives, illuminating the tracks for great distances ahead, also indicate the importance those entrusted with the management of railroads attach to the effective illumination of the track ahead of a train on even a private right-of-way.

This court has held that to drive an automobile with visibility ahead limited to 15 or 20 feet is evidence of negligence. In the case of Mason v. Lavine, Inc., Mr. Justice SCHAFFER, in an opinion handed down on January 5th, last, used the following language: "Can it be said that one is not negligent who drives an automobile on a rainy, foggy, slippery night at a speed of between 20 and 25 miles an hour, whose visibility is limited, owing to the condition of his headlights, to 15 or 20 feet, who is just coming out of a slight patch of fog, who does not know in what distance he can stop his car under such conditions, but who is of opinion that on a dry roadbed he could stop it within 10 or 15 feet (which we may remark is denied in the tables prepared by automobile engineers of wide experience, where the stopping distance at 25 miles an hour is given as 58 feet and at 20 miles as 37 feet). . . . Such celerity of movement under the conditions which he describes could not be determined to be with due care."

Under the circumstances of this case, the speed of the car and the visibility ahead should have been so related to each other that the car could in a sudden emergency like the one that presented itself to the motorman in the instant case, be stopped within a distance not greater than the length of that visibility. There was no such relationship here between speed and visibility. While the dimmers were on the motorman did not see on the tracks the man who apparently was attempting to rise. It...