Pieper v. Union Traction Co. of Philadelphia
| Decision Date | 24 March 1902 |
| Docket Number | 53 |
| Citation | 51 A. 739,202 Pa. 100 |
| Parties | Pieper, Appellant, v. Union Traction Company |
| Court | Pennsylvania Supreme Court |
Argued January 21, 1902
Appeal, No. 53, Jan. T., 1901, by plaintiff, from order of C.P. No. 4, Phila. Co., Dec. T., 1899, No. 818, refusing to take off nonsuit in case of John H. Pieper v. Union Traction Company. Affirmed.
Trespass to recover damages for personal injuries. Before AUDENRIED J.
The opinion of the Supreme Court states the case.
Error assigned was in refusing to take off nonsuit.
Judgment affirmed.
Frederick J. Shoyer, for appellant. -- The rule to stop, look and listen when applied to collisions occurring when crossing electric railways on public streets and highways is in some particulars different than with respect to collisions while crossing steam railroads: Ehrisman v. East Harrisburg City Pass. Railway Co., 150 Pa. 180; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519; Wheelahan v. Philadelphia Traction Co., 150 Pa. 187; Carson v. Federal Street, etc., Ry. Co., 147 Pa. 219; Smith v. Electric Traction Co., 187 Pa. 110; Boehmer v. Traction Co., 194 Pa. 313; Kern v. Traction Co., 194 Pa. 75; Cupps v. Traction Co., 13 Pa.Super. 630; Brown v. Traction Co., 14 Pa.Super. 594; Darwood v. Traction Co., 189 Pa. 592; Raulston v. Traction Co., 13 Pa.Super. 412; Callahan v. Traction Co., 184 Pa. 425; Downey v. Traction Co., 161 Pa. 131; Conyngham v. Electric Motor Co., 15 Pa.Super. 573.
The case clearly does not come within the principle of Carroll v. R.R. Co., 12 W.N.C. 348; Omslaer v. Traction Co., 168 Pa. 519; Wheelahan v. Traction Co., 150 Pa. 187; Boehmer v. Traction Co., 194 Pa. 313; Cupps v. Traction Co., 13 Pa.Super. 630; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Brown v. Traction Co., 14 Pa.Super. 594; Darwood v. Traction Co., 189 Pa. 592.
This case on all its facts certainly comes within the principle of Downey v. Traction Co., 161 Pa. 131, Callahan v. Traction Co., 184 Pa. 425, Raulston v. Traction Co., 13 Pa.Super. 412, and Conyngham v. Electric Motor Co., 15 Pa.Super. 573, and the judgment of nonsuit should be reversed.
Thomas Leaming, with him Charles Biddle, for appellee. -- It is contributory negligence not to look immediately before crossing a track, and the learned court was correct in entering a nonsuit: Burke v. Union Traction Co., 198 Pa. 497; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180.
Appellant's argument that the car must have been so distant that the plaintiff was excused from the duty to look is mathematically impossible and is without authority.
The authorities as to right-angle collisions between street cars and wagons in their chronological order are as follows: Thomas v. Citizens Pass. Ry. Co., 132 Pa. 504; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Ehrisman v. East City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Phila. Traction Co., 150 Pa. 187; Winter v. Federal St., etc., Pass. Ry. Co., 153 Pa. 26; Gilmore v. Federal St., etc., Pass. Ry. Co., 153 Pa. 31; Downey v. Pittsburg, etc., Traction Co., 161 Pa. 131; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519; Callahan v. Phila. Traction Co., 184 Pa. 425; Smith v. Electric Traction Co., 187 Pa. 110; Darwood v. Traction Co., 189 Pa. 592; Kern v. Second Ave. Traction Co., 194 Pa. 75; Boehmer v. Pittsburg, etc., Traction Co., 194 Pa. 313; Bornscheuer v. Traction Co., 198 Pa. 332; Burke v. Union Traction Co., 198 Pa. 497; Tyson v. Union Traction Co., 199 Pa. 264.
Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
The record in this case does not disclose the reason why the court below entered the judgment of nonsuit, but we assume it was on the ground of the contributory negligence of the plaintiff. According to his own testimony, he was so careless before crossing the track, and so reckless of his duty to protect himself from impending danger, that it would have been palpable error to have submitted his case to the jury. He testified that, on January 11, 1900, he was driving a two-horse wagon westward from Twelfth street, on Thompson street, in the city of Philadelphia; that the wagon was a big, high seated one with curtains all down the sides, because it was raining; that, when he reached the flag crossing across Thompson street, on the east side of Thirteenth street, he gave one look "out from underneath the cover" of his wagon, down Thirteenth street, for a distance of fifty or seventy feet, to see if a trolley car was coming, and, seeing none within that distance, he sat back in the wagon, satisfied that he could cross the track without being struck; that, giving no further look, he went straight ahead, and the next thing he knew his wagon was hit. Hutton, who was in the wagon with him, testified that it was necessary to stoop forward and look around the curtains to get a view of Thirteenth street from the south, the direction from which the car was coming.
The duty of the plaintiff, when he was entering Thirteenth street, was to be on the lookout for the approaching car, and, when on the street, to continue to look until the track was reached: Burke v. Union Traction Co., 198 Pa. 497; but he failed even to look as he should have looked when he was about to enter the street, and he did not look at all when his team was on it and came to the track. A single glance "out from underneath the cover" of his wagon, down the street for but fifty or seventy feet, was not such a looking as enabled him to see the danger into which he took his wagon an instant later; and this careless looking was in itself negligence. It was a mere heedless glance, and not an adequate performance of the duty required by the situation: Warner v. Peoples' Street Railway Co., 141 Pa. 615. After this careless look or glance he did not look again, or attempt to do so, when he got on the street and reached the track. On the contrary, he sat back in his wagon, between its curtained sides, with the view of Thirteenth street and the coming car cut off, and, with unconcern that amounted to recklessness, placidly drove on until his wagon was struck. In the reported cases, from Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180, down to Burke v. Union Traction Co., supra, there can be found no clearer case of contributory negligence. From the dilemma in which the plaintiff has placed himself not even the testimony of his witness, Collins, can extricate him. In what that witness said as to material matters he was so clearly mistaken, and his testimony was so manifestly incorrect, that the court would have been fully justified in instructing the jury to disregard it, if the case had been submitted to them: Bornscheuer v. Consolidated Traction Co., 198 Pa. 332.
Judgment affirmed.
DISSENT BY: MESTREZAT
The facts of this case fairly deducible from the evidence may be briefly summarized as follows: Plaintiff, driving a two-horse wagon west on Thompson street, approached a street railway crossing on Thirteenth street. As soon as he entered the fifty-foot street on which the railway cars were operated and where he could see an approaching car, he leaned forward and looked south from beneath the curtains covering his wagon, which extend only a short distance in front of the driver's seat, and saw fifty to seventy feet along the railway track. His horses at that time were near the track. He saw no car, and no warning of any kind of an approaching car was given. A car approaching Thompson street at that time could not have been within 500 feet of the crossing, considering the distance traveled by the wagon and the car from the time the plaintiff looked for a car and the time when his wagon was struck. Believing that he could cross in safety, he attempted to do so. He proceeded carefully with his foot on the brake and his horses under complete control. When his wagon was half way across the track, a street car was approaching from the south and was at Cabot street, 120 feet distant, and it could have been seen by the motorman. After the horses and the greater part of the wagon were beyond the track, the rear wheel of the wagon while on the west rail of the track was struck by a car running on a descending grade at an excessive rate of speed of fifteen miles an hour with such force as to release the horses and carry the wagon at least fifty-three feet. The car did not slacken its speed as it approached the crossing. The plaintiff's horses and wagon, after entering Thirteenth street, were in view of the motorman for at least a distance of 500 feet.
The case should have been submitted to the jury to determine the negligence of the defendant and the contributory negligence of the plaintiff. We think there can be little doubt that under the testimony the jury would have found that the company was running at a negligent rate of speed and was both reckless and negligent in approaching Thompson street. This was a populous part of the city. Between Girard avenue and Thompson street, Cabot and Stiles streets cross Thirteenth street. At the intersection of either of these streets with Thirteenth street, the car was likely to collide with some person or vehicle, hence it became the duty of the motorman and the conductor in control of the car to run at a rate of speed which would not endanger the safety of persons who,...
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