Pensak v. Peerless Oil Company

• Decision Date: 10 April 1933
• Docket Number: 154
• Citation: 311 Pa. 207,166 A. 792
• Parties: Pensak v. Peerless Oil Company, Appellant
• Court: Pennsylvania Supreme Court

166 A. 792

311 Pa. 207

Pensak v. Peerless Oil Company, Appellant

No. 154

Supreme Court of Pennsylvania

April 10, 1933

Argued January 24, 1933

Appeal, No. 154, Jan. T., 1933, by defendant, from judgment of C.P. Lackawanna Co., Sept. T., 1929, No. 2297, on verdict for plaintiff, in case of E. Phillip Pensak v. Peerless Oil Company. Modified and affirmed.

Trespass for personal injuries. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment of $5,492.25 for plaintiff. Defendant appealed.

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

It is therefore, ordered that the judgment in the court below be modified by striking out of it the amount awarded for wages. As thus modified, it is affirmed.

James K. Peck, with him Ralph W. Rymer, for appellant, cited Schulte v. Cab Co., 104 Pa.Super. 130; Kauffman v. Nelson, 225 Pa. 174; Halpert v. Earnshaw, 304 Pa. 95.

David J. Reedy, with him Myer Kabatchnick, for appellee, cited: Rosenthal 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 v. Brillhart, 271 Pa. 301; Robb v. Cab Co., 283 Pa. 454; Lamont v. Express Co., 264 Pa. 17.

Before FRAZER, C.J., KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff, while crossing one of the busiest streets in the City of Scranton, was struck and injured by defendant's truck. He recovered a verdict, upon which judgment was entered. Defendant appeals, contending that plaintiff was guilty of contributory negligence, that he heedlessly walked into the side of the truck. Our reading of the testimony does not convince us that he did. On the contrary, even under defendant's own testimony, we think the question of plaintiff's contributory negligence was for the jury.

The accident occurred where the intersection of Sixth Avenue and Lackawanna Avenue forms a wide space, a sort of plaza. Its south boundary is the freight station of the Central Railroad of New Jersey. Plaintiff had visited this station, had descended the steps from its platform, and started to walk across the plaza, on what was described by some of the witnesses as a crossing, although in fact there was no defined crossing. It was, however, the customary place for pedestrians to cross. He had proceeded some ten or twelve feet in the highway, when the truck, which came from his rear on Lackawanna Avenue, at a speed estimated by one of the witnesses to be twenty miles an hour, turned with a "sharp arc" to the right to enter Sixth Avenue and struck him. Plaintiff testified that before starting across the street he looked in both directions and saw nothing, that he was not aware of the truck until it made the sudden right turn and was upon him. It was a clear afternoon and it would not have been difficult for the driver of the truck to see and avoid plaintiff if, as he made the turn and approached the crossing, his truck had been under proper control. What we said in Rosenthal v. Phila. Phonograph Co., 274 Pa. 236, 238, is pertinent to the situation now before us. "Plaintiff was at a place upon the highway where he had a right to be, and it was the duty of defendant's driver in making the turn from one street into the other to...