Shields v. Philadelphia Rapid Transit Co.

• Decision Date: 03 June 1918
• Docket Number: 360
• Citation: 261 Pa. 422,104 A. 665
• Parties: Shields v. Philadelphia Rapid Transit Company, Appellant
• Court: Pennsylvania Supreme Court

104 A. 665

261 Pa. 422

Shields v. Philadelphia Rapid Transit Company, Appellant

No. 360

Supreme Court of Pennsylvania

June 3, 1918

Argued March 25, 1918

Appeal, No. 360, Jan. T., 1917, by defendant, from judgment of C.P. No. 1, Philadelphia Co., June T., 1916, No. 3105, on verdict for plaintiff, in case of Patrick J. Shields v Philadelphia Rapid Transit Company. Affirmed.

Trespass to recover damages for personal injuries. Before SHOEMAKER J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.

Errors assigned, among others, were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v.

The assignments of error are overruled and the judgment affirmed.

Layton M. Schoch, for appellant. -- This was an instantaneous collision between a pedestrian and a moving street car and the plaintiff is barred of recovery: Wolf v. Philadelphia Rapid Transit Co., 252 Pa. 448; Flynn v. Pittsburgh Railways Co., 234 Pa. 335; Klingmann v. Pittsburgh Railways Co., 252 Pa. 12; Smith v. Electric Traction Co., 187 Pa. 110; Easley v. Pa. R.R. Co., 238 Pa. 67; Greenwood v. P., W. & B.R.R. Co., 124 Pa. 572; Welsh v. Philadelphia Rapid Transit Co., 63 Pa.Super. 143; Randall v. Philadelphia Rapid Transit Co., 62 Pa.Super. 531.

It is impossible that the plaintiff should have been struck at the place stated by him, and if the accident occurred at the place established by the other witnesses in the case, there was no evidence of negligence of the defendant: Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Underwood v. Pitts. Rys. Co., 238 Pa. 332.

Horace L. Henderson, for appellee. -- The case was for the jury: Ely v. P., C., C. & St. L.Ry. Co., 158 Pa. 233; the jury: Ely v. P., C., C. & St. L.Ry. Co., 158 Pa. 233; Wagner v. Philadelphia Rapid Transit Co., 252 Pa. 354; Reeves v. The D., L. & W.R.R. Co., 30 Pa. 454; Young v. Philadelphia Rapid Transit Co., 248 Pa. 174; Callahan v. Philadelphia Traction Co., 184 Pa. 425; Hamilton v. Consolidated Traction Co., 201 Pa. 351; Schmidt v. Philadelphia Rapid Transit Co., 253 Pa. 502; Fellers v. Warren St. Ry. Co., 26 Pa.Super. 31; Dunn v. Philadelphia Rapid Transit Co., 244 Pa. 176.

Before MESTREZAT, POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff was injured by one of defendant's cars at a street crossing in the City of Philadelphia, and sued to recover damages. The trial judge submitted to the jury the questions of negligence and contributory negligence, and from a verdict and judgment for plaintiff, defendant appealed, assigning for errors the refusal of the court to give binding instructions in its favor and subsequent refusal to enter judgment non obstante veredicto.

On November 5, 1915, between eight and nine o'clock in the evening, plaintiff alighted from a northbound car on 22d street at the south side of Erie avenue at the intersection of 22d street, Schuyler street, Erie avenue and Hunting Park avenue, crossed Erie avenue to the northwestern side of Hunting Park avenue intending to proceed eastward on Erie avenue and to do so was obliged to cross to the northeastern side of Hunting Park avenue. Defendant operates a double line of tracks on Hunting Park avenue, a thoroughfare 60 feet in width from curb to curb, the distance from each curb to the nearest car track being 23 1/2 feet. Plaintiff testified that while standing on the curb, and as he started to cross the avenue he noticed a car coming westwardly on Hunting Park avenue, on the near track, that seemed to be slowing down, and two hundred and fifty or two hundred and seventy-five feet distant; that he started to cross the street and upon reaching the track the car was at least two lengths from him. He further testified: "When I got to the first rail I continued to cross, still thinking it was slowing down, and probably going to stop there, which they generally do. Before I got almost over the track, he came on me like a flash, and that was really the last I knew . . . . Q. From the view that was really the last I knew. . . . q. From the view that you had of the car as it bore down on you, could 'speed it was coming at? you give any estimate of what speed it was coming at? . . . . A. From what I saw it coming, when I was within two car lengths, until the time it struck me, it certainly must have been going about twenty-five miles an hour. . . . Q. Did you observe that it went faster after you attempted to cross the track? A. Yes, sir; I did. I couldn't get off the track." Plaintiff has no recollection of what happened subsequently; the evidence, however, is undisputed that he was picked up on the opposite side of the crossing, a distance of one hundred and sixty-five feet beyond the place at which he stated the accident occurred. The testimony on behalf of defendant tended to show plaintiff was, in fact, struck on the south side of the crossing near the place where he was found, and that the car stopped within its length after hitting plaintiff. By special verdict the jury found the accident did not occur at the place specified by defendant's witnesses.

The general rule in cases of this character is that while a person has no right to put himself in a position of danger and rely entirely on the assumption that another who controls the source of such danger will see that he is protected, yet everyone who exercises due care, according to the circumstances, has an abstract right to rely on the assumption that others will do likewise and use ordinary care to protect him and his property from injury: Young v Philadelphia Rapid Transit Co., 248 Pa. 174; Wagner v. Philadelphia Rapid Transit Co., 252 Pa. 354; consequently, mere failure to anticipate negligence by another, resulting in injury, cannot be said to be negligence and...