Pensak v. Peerless Oil Company, 154

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtMR. JUSTICE SCHAFFER:
Citation311 Pa. 207,166 A. 792
Decision Date10 April 1933
Docket Number154
PartiesPensak v. Peerless Oil Company, Appellant

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

[311 Pa. 208] 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.

[311 Pa. 209] 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...

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