Sexauer v. Pittsburgh Railways Co.
| Decision Date | 23 November 1931 |
| Docket Number | 162 |
| Citation | 305 Pa. 319,157 A. 603 |
| Parties | Sexauer v. Pittsburgh Railways Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 2, 1931
Appeal, No. 162, March T., 1931, by defendant, from judgment of C.P. Allegheny Co., Jan. T., 1930, No. 79, on verdict for plaintiff, in case of Robert Sexauer v. Pittsburgh. Affirmed.
Trespass for personal injuries. Before ROWAND, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $11,871. Defendant appealed.
Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.
The judgment is affirmed.
William A. Challener, with him J. R. McNary, for appellant. -- Plaintiff was guilty of contributory negligence in standing on the running board of the truck: Schomaker v Havey, 291 Pa. 30; Robinson v. Ice Co., 292 Pa 366.
Sexauer was guilty of contributory negligence because he did not look for a car which was approaching on the track on which the truck was stopped and which he could have seen, had he looked: Kilgallen v. Transit Co., 300 Pa. 451; Magyar v. R.R., 294 Pa. 585; Rothweiler v. Traction Co., 93 Pa.Super. 369; Bardis v. Ry., 267 Pa. 352; Griffiths v. Transit Co., 292 Pa. 489.
The contributory negligence of the driver in not backing off the track and thus avoiding the collision, must be imputed to plaintiff: Rothberg v. Traction Co., 97 Pa.Super. 447; Robinson v. Ice Co., 292 Pa. 366.
Harry R. Levy, with him Harry J. Applestein, for appellee. -- The case at bar is ruled by the case of Lettaire v. Blaisden, 101 Pa.Super. 423; see also Schomaker v. Havey, 291 Pa. 30; Hull v. Bowers, 273 Pa. 429; McClung v. Taximeter Co., 252 Pa. 478; Schaeffer v. Transit Co., 302 Pa. 220; Messinger v. Transit Co., 97 Pa.Super. 319.
Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
Forbes Street, extending through the City of Pittsburgh in a so-called easterly and westerly direction has, in the center of its cartway, defendant's (Pittsburgh Railways Company's) double track electric street railway, the cartway being of the width of thirty-six feet. In the easterly part of the city Woodlawn Avenue enters Forbes Street from the south and three hundred and fifty feet to the east Normlee Way enters the same street from the north and six hundred and eight feet to the east thereof Plainfield Street also enters Forbes Street from the north. On the early afternoon of June 10, 1929, a group of six men, including the plaintiff, were distributing sample packages of Kellogg's Corn Flakes in this neighborhood by the aid of an auto truck. One of them named Magee drove the truck to the corner of Woodlawn Avenue and Forbes Street where it was boarded by the other five. As the truck contained boxes of the sample packages, two of the men sat on the seat with the driver, one lay on the right mud guard and the other two, including plaintiff, stood on the left running board. The truck was then driven easterly on Forbes Street along the south or eastbound car track. Assuming, as we must, the facts as plaintiff's evidence supports them, it appears that at the proper place the truck started to make a left-hand turn across the westbound track to enter Normlee Way. At this time a trolley car (herein called the car) was approaching from the east at a distance of some two hundred and fifty feet, on the right side of which was a large automobile traveling in the same direction, which soon increased its speed to forty or more miles an hour, moving ahead of the car and coming on so rapidly as to prevent the Kellogg truck from passing in front of it. Before this situation developed Magee had turned the truck so the left front wheel was between the rails of the westbound track. Seeing his path thus obstructed, he stopped his truck and attempted to back off the track of the approaching car, but, as it bore down upon him at an undiminished speed of some thirty-five miles an hour, before he was able to do so it collided with the left front corner of his truck and threw plaintiff off with such force as to cause serious injuries for which he brought this suit. The trial resulted in a verdict for plaintiff and, from judgment entered thereon, defendant brought this appeal.
While the record presents some interesting legal questions, which were forcibly brought to our attention, we are not convinced that the judgment should be reversed. The defendant's sole complaint here is the lower court's refusal to direct or enter judgment in its favor. On the basis that the attempt of the truck to turn into Normlee Way was halted by the unexpected accelerated speed of the automobile as the former was partly on the westbound track, it was the motorman's duty to take note of this situation and slacken his speed or, if necessary, stop his car so the truck could clear the track. When a motorman sees a vehicle standing in his path and its forward progress is impeded he should, where time affords, place his car under such control as to avoid a collision. His full duty is not performed merely by sounding his gong while proceeding at high speed. The situation required extra care as the car was traveling down a six per cent grade. Manifestly the question of defendant's negligence was for the jury. See Messinger v. P.R.T. Co., 97 Pa.Super. 319, 323.
We are spared a consideration of the question of joint enterprise as the case was tried below and here on the basis that plaintiff could not recover if the truck driver was negligent. The Kellogg truck had a right to enter Normlee Way and its driver was not as matter of law, guilty of contributory negligence by attempting to do so when the other vehicles were approximately two hundred and fifty feet away. See Kilpatrick v. P.R.T. Co., 290...
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