Mellet v. Reading Transit Co.

• Decision Date: 08 December 1913
• Docket Number: 278-1912
• Citation: 55 Pa.Super. 465
• Parties: Mellet, Appellant, v. Reading Transit Company
• Court: Pennsylvania Superior Court

55 Pa.Super. 465

Mellet, Appellant, v. Reading Transit Company

No. 278-1912

Superior Court of Pennsylvania

December 8, 1913

Argued November 10, 1913 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Berks Co.-1911, No. 21, for defendant n. o. v. in case of Michael Mellet v. Reading Transit Company.

Trespass to recover damages for injuries to an automobile. Before Endlich, P. J.

At the trial the jury returned a verdict for plaintiff for $ 652.72.

Subsequently the court entered judgment for defendant n. o. v., Endlich, P. J., filing the following opinion:

On the morning of August 20, 1910, defendant's trolley car, going southwardly, descended an easy grade towards a turn in the track, which, north of the turn, occupies for some distance the eastern side of the highway, then at the foot of the declivity crosses the road westwardly and leaves it for a private right of way. At the same time, south of the crossing and moving northwardly, also upon the eastern side of the highway and on a grade slightly declining towards the crossing, came plaintiff's automobile in charge of his chauffeur, who was unacquainted with the road. When 200 or more feet south of the crossing, he saw the approaching car, then something over 300 feet north of the crossing, There was nothing to obstruct his view of the track north of the crossing or his continuing observation of the car upon it. Yet he swears that he did not see the car after his first sight of it until within eight or ten feet of it. A crossing sign near the point at which the track leaves the highway may have been concealed by branches of trees. At any rate, the chauffeur says he did not see it. But neither did he see the track crossing the highway until within eight or ten feet of it, although it was visible from the road south of it for over 200 feet. When, as he says, he first saw the track crossing the highway and again saw the car, he applied the brake and turned to the right, in order to pass behind the car, but collided with it, the automobile passing over the coupling bar, which extended somewhat to the left side of the front of the car. The latter had come down the grade just north of the turn at a low speed and was brought to a stop on the turn about halfway across the highway a moment before the collision. There is affirmative evidence of signals given by the car, and negative evidence of their omission. The chauffeur testifies that before braking he was running at fifteen miles an hour. Other witnesses put his speed at from twenty to thirty-five miles.

There is no escape from the facts that the automobile ran against the defendant's car at the instant of contact standing still, and that, had the chauffeur turned to the left instead of the right, he would have passed safely in front of it. It may be that, at the very moment when he was required to decide which way to turn, the car had not come to a complete stop. But that possibility, which otherwise might be of grave significance under the doctrine excusing errors committed in the presence of sudden danger: Sprowls v. Morris Twp., 179 Pa. 219; Cannon v. Traction Co., 194 Pa. 159; Stover v. R. R. Co., 195 Pa. 616; McKee v. Traction Co., 211 Pa. 47; Shaffer v. Traction Co., 229 Pa. 533; Walsh v. Ry. Co., 232 Pa. 479; Quinn v. Ry. Co., 7 Pa.Super. 19; Flaherty v. Gas & Water Co., 30 Pa.Super. 446, 449, is of no service to the plaintiff here; for, as all the cases show, the doctrine applies only where through the negligence of one another is without fault on his part brought into a predicament which he could not have foreseen and for which therefore he could not have prepared.

It is difficult to find that in the evidence of this case whereon to base a fair inference of negligence on the part of defendant's employees in the handling of the car. It is idle to insist that it was run at an undue rate of speed. It was stopped so promptly upon its appearance at the crossing as to render quite incredible any suggestion of its rapid approach. See Gilbert v. Traction Co., 4 Berks County L. J. 157, 158, and cases there cited. And taking this fact together with the overwhelming testimony on defendant's side as to the moderate pace at which the car proceeded (and it may here be observed that the criticism of that testimony made by plaintiff's counsel amounts to no more than a demonstration of that lack of precise detail which is wisely looked upon as indicative of truthfulness: Kraut v. Ry. Co., 160 Pa. 327, 335; Com. v. Winkelman, 12 Pa.Super. 497, 513, and does not at all affect the substance of it) the assertion of a single witness for plaintiff to the contrary can at the most be regarded as a scintilla, which upon familiar principles is not sufficient to warrant a verdict against the defendant, and which does not stand in the way of a judgment n. o. v.: Fisher v. Scharadin, 186 Pa. 565, 568. When it is said, in Duffy v. Water & Power Co., 233 Pa. 107; Page v. Moore, 235 Pa. 161; Ackley v. Bradford Twp., 32 Pa.Super. 487, and similar decisions, that in the presence of a conflict of evidence on a material fact for the determination of the jury there can be no binding instructions and no judgment n. o. v., no matter how convincing the proof on the one side may appear, the statement must be understood in the light of the rule that there is no such conflict where the fact is so clearly established that, as declared in Newhard v. R. R. Co., 153 Pa. 417, 420, " a court, in the due administration of justice, must treat it as a fact." In view of the superior probative weight of affirmative over negative testimony: see Hauser v. R. R. Co., 147 Pa. 440; Urias v. R. R. Co., 152 Pa. 326; Keiser v. R. R. Co., 212 Pa. 409; Anspach v. R. R. Co., 225 Pa. 528, much the same is to be said of the contention that the car gave no warning of its approach. But in truth neither the one nor the other of these matters is of decisive importance, and the question whether or not there may have been a speck of negligence on the part of defendant's employees need not be discussed. It is manifest that there was on the part of plaintiff's chauffeur a degree of inattention to his duties which, if not the exclusive cause of the collision, at all events largely contributed to it.

Whether he was running at fifteen or at twenty or at thirty-five miles an hour, he was running on a road and in a locality which were new to him and therefore called for vigilance and caution. He was going northwardly on the...