McGurk v. Belmont

Citation297 Pa. 192,146 A. 539
Decision Date13 May 1929
Docket Number181
PartiesMcGurk v. Belmont et al., Appellants
CourtUnited States State Supreme Court of Pennsylvania

Argued April 23, 1929

Appeal, No. 181, Jan. T., 1929, by defendants, from order of C.P. No. 4, Phila. Co., June T., 1926, No. 17778, refusing judgment for defendant n.o.v., in case of Ellen McGurk v Louis A. Belmont et al., trading as Philadelphia Toilet &amp Laundry Co. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $5,358.78. Defendants appealed.

Error assigned was order refusing judgment for defendants n.o.v., quoting record.

The judgment is affirmed.

George Gowen Parry, with him Harold Cooper Roberts, for appellants. -- The fact that there were skid marks on the bed of the street is insufficient to sustain an allegation of excessive speed: Wiser v. Baking Co., 289 Pa. 565; Eastburn v. Express Co., 225 Pa. 33; Post v. Richardson, 273 Pa. 56; Stahl v. Sollenberger, 246 Pa. 525.

The presumption that decedent was exercising due care is rebutted by plaintiff's evidence that the truck was in plain view of decedent for a considerable distance: Watson v. Lit Bros., 288 Pa. 175; Weaver v. Pickering, 279 Pa. 214; Harris v. Ice Co., 153 Pa. 278; Christy v. R.R., 283 Pa. 538; Donahue v. Transit Co., 293 Pa. 253.

Hugh Roberts, for appellee. -- If there is any superior right to the use of the highway, it is with the pedestrian who is in the cartway: Gilles v. Leas, 282 Pa. 318; Parznik v. Abattoir Co., 284 Pa. 393; Eckert v. Shipbuilding Co., 280 Pa. 340.

Skidding ten feet with locked wheels is evidence of negligence: Johnson v. French, 291 Pa. 437; Parznik v. Abattoir Co., 284 Pa. 393.

Decedent was not guilty of contributory negligence.

All the inferences to be drawn from all the testimony were inferences to be drawn by the jury from the proven facts in the case: Ryan v. Granite Co., 266 Pa. 105; Donovan v. Transit Co., 273 Pa. 152; Wolf v. Sweeney, 270 Pa. 97; Cramer v. Aluminum Co., 239 Pa. 120; Hastings v. R.R., 272 Pa. 212.

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

OPINION

MR. JUSTICE FRAZER:

Plaintiff's decedent was struck and killed by defendant's automobile truck near the southeast corner of Ridge Avenue and Spring Garden Street in the City of Philadelphia. The accident occurred in daytime. There were no witnesses to the actual collision, although a traffic policeman stationed on the opposite corner saw both decedent and the truck a moment before and after the collision occurred. Defendant offered no evidence, but moved for a nonsuit at the close of plaintiff's case, which motion was refused and the case submitted to the jury; a verdict was rendered for plaintiff for $5,358.78. A motion for judgment for defendant non obstant veredicto was subsequently refused and judgment entered on the verdict for plaintiff, from which order defendant appealed.

The location of the accident is an extremely dangerous crossing, requiring the utmost care on the part of automobile drivers. Two streets cross each other at acute angles and a third street intersects them at the junction of the other two. Ridge Avenue, 60 feet wide, running diagonally northwest and southeast, intersects the south side of Spring Garden Street, 120 feet wide, east of Twelfth Street, 50 feet wide, there being fifty-one feet between the west side of Ridge Avenue and the east side of Twelfth Street. The traffic on Spring Garden Street is required to cross four footway crossings in the space of approximately 160 feet.

According to the testimony of the traffic officer, stationed at the time at the northwestern intersection of these three streets, the traffic had been moving on Spring Garden Street east and west. Defendant's driver approached toward the east on Spring Garden Street quite a distance in the rear of other traffic preceding him. The officer waited for the truck driver to pass and at once changed the signal for north and south traffic to proceed. Immediately before changing the signal, the officer saw deceased on the east sidewalk of Ridge Avenue, approaching the south side of Spring Garden Street. He looked north on Twelfth Street, saw traffic start, and at the same moment heard the noise of tires sliding over the roadway, due to the effort of defendant's driver to bring his car to a stop.

The distance between deceased and defendant's automobile before the latter started to cross the street was about 200 feet, and, to reach the east side of Ridge Avenue where deceased was walking, it was necessary for defendant's car to cross Twelfth Street, pass over an intervening space of 50 feet before reaching the western side of Ridge Avenue and then cross Ridge Avenue diagonally which had a total width, including sidewalks, of 60 feet. Immediately following the collision, deceased was found lying under defendant's automobile near the center of the car, which had stopped on the south side of Spring Garden Street, seven or eight feet from the south curb, with the rear of the car 10 feet east of the foot walk. There were skid marks on the roadway "ten feet or so" long. Since no one saw the actual collision, the record contains no evidence of the precise position of decedent...

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7 cases
  • Byrne v. O. G. Schultz, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 14, 1932
    ...Corp., 280 Pa. 340, 124 A. 477; Gilles v. Leas, 282 Pa. 318, 127 A. 774; Johnson v. French, 291 Pa. 437, 140 A. 133; McGurk v. Belmont, 297 Pa. 192, 146 A. 539; Newman v. Protective Motor Service Co., 298 Pa. 509, 148 A. 711. In Gilles v. Leas, it is said, at page 320, of 282 Pa., 127 A. 77......
  • Byrne v. Schultz
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 14, 1932
    ...all circumstances and whether or not a traffic officer is present: Gilles v. Leas, 282 Pa. 318; Clark v. Horowitz, 293 Pa. 441; McGurk v. Belmont, 297 Pa. 192; Galliano Electric Co., 303 Pa. 498. Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ. OPINION MR. JUSTICE DREW: ......
  • Pensak v. Peerless Oil Company
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 10, 1933
    ...v. Phonograph Co., 274 Pa. 236; Johnson v. French, 291 Pa. 437; Anderson v. Wood, 264 Pa. 98; Gilles v. Leas, 282 Pa. 318; McGurk v. Belmont, 297 Pa. 192; King Brillhart, 271 Pa. 301; Robb v. Cab Co., 283 Pa. 454; Lamont v. Express Co., 264 Pa. 17. Before FRAZER, C.J., KEPHART, SCHAFFER, MA......
  • Dougherty v. Merchants' Baking Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 2, 1934
    ...avoid a collision. Byrne v. Schultz, 306 Pa. 427, 160 A. 125; Peters v. Atlas Powder Co., 313 Pa. ——, 169 A. 160. See McGurk v. Belmont, 297 Pa. 192, 146 A. 539; Adams v. Gardiner, 306 Pa. 576, 160 A. 589. If, when he started, defendant's truck was hidden from his vision, his view of the ro......
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