Rosenthal v. Philadelphia Phonograph Co.

• Decision Date: 24 April 1922
• Docket Number: 375
• Citation: 274 Pa. 236,117 A. 790
• Parties: Rosenthal v. Philadelphia Phonograph Co., Appellant
• Court: Pennsylvania Supreme Court

117 A. 790

274 Pa. 236

Rosenthal v. Philadelphia Phonograph Co., Appellant

No. 375

Supreme Court of Pennsylvania

April 24, 1922

Argued March 28, 1922

Appeal, No. 375, Jan. T., 1922, by defendant, from judgment of C.P. No. 4, Phila. Co., Sept. T., 1920, No. 6814, on verdict for plaintiff, in case of Kauffman Rosenthal v Philadelphia Phonograph Co. Affirmed.

Trespass for personal injuries. Before McCULLEN, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $2,500. Defendant appealed.

Error assigned, among others, was refusal of judgment for defendant n.o.v., quoting record.

The judgment is affirmed.

Ralph B. Evans, of Evans, Bayard & Frick, for appellant, cited Flanigan v. McLean, 267 Pa. 553; Twinn v. Noble, 270 Pa. 500; Lessig v. T. & L. Co., 270 Pa. 299.

Henry J. Scott, with him Harry E. Apeler, for appellee, cited: Anderson v. Wood, 264 Pa. 98; Virgilio v. Walker, 254 Pa. 241; Mackin v. Patterson, 270 Pa. 107; Schweitzer v. Cab Co., 269 Pa. 291.

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

OPINION

MR. JUSTICE SADLER:

This action was brought to recover damages for injuries sustained by plaintiff, who was struck by defendant's automobile. Between six and seven o'clock on a January evening, he was crossing from the northwest to the southwest corner of Seventh and Arch streets, in the City of Philadelphia, and, when the accident happened, had advanced about three steps from the curb, at the place provided for pedestrians, following others moving in the same direction. The truck of defendant had come north on Seventh Street, and turned into Arch, striking Rosenthal and inflicting his injuries.

A statement of claim was filed, in which plaintiff averred negligence by defendant in running the car at an excessive speed, and without giving due warning of its approach. No evidence was produced at the trial to establish the correctness of either of these allegations, and the court below properly refused to permit the jury to consider them. A further charge was made, that the machine was not under proper control, and operated without due regard for the safety of those making lawful use of the public crossing. Plaintiff and two witnesses testified to the facts as already narrated. According to the testimony of the former, he looked, before leaving the curb, and saw no machine approaching. In defense, medical testimony alone was offered. At the conclusion of the trial, binding instructions were asked for defendant, on the ground of insufficiency of the evidence to show any negligence. This application was refused, as was a motion for judgment n.o.v., after a finding for plaintiff. From the judgment entered on the verdict, this appeal is taken.

The legal principles controlling the present case have been the subject of frequent discussion in recent cases. In Virgilio v. Walker, 254 Pa. 241, 245, it was said in part: "Vehicles have the right of way on the portion of the highway set aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestrians." A like declaration is to be found in Anderson v. Wood, 264 Pa. 98, and Twinn v. Noble, 270 Pa. 500. It is true, the mere happening of the accident does not prove defendant's negligence (King v. Brillhart, 271 Pa. 301), but there was proof, in the present case, of other facts, which made necessary the determination of the question by the jury, and justified its finding. Plaintiff was at a...