Smyth v. Philadelphia & West Chester Traction Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE WALLING:
• Citation: Smyth v. Phila. & W. C. T. Co., 263 Pa. 511 (Pa. 1919)
• Decision Date: 10 February 1919
• Docket Number: 96
• Parties: Smyth v. Philadelphia & West Chester Traction Company, Appellant

263 Pa. 511

Smyth

v. Philadelphia & West Chester Traction Company, Appellant.

Supreme Court of Pennsylvania.

January 13, 1919.

February 10, 1919.

Argued Jan. 13, 1919.

Appeal, No. 96, Jan. T., 1919, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1916, No. 3458, on verdict for plaintiff in case of Mary E. Smyth v. Phila. & West Chester Traction Co.

Before BROWN, C. J., MOSCHZISKER, FRAZER, WALLING and KEPHART, JJ. Affirmed.

David J. Smyth and William I. Schaffer, for appellant. —The facts being undisputed and disclosing no negligence on the part of the defendant, but disclosing negligence on the part of the plaintiff, it is for the court to direct a verdict for the defendant: Lonzer v. Lehigh Val. R. R. Co., 196 Pa. 610; Hamilton v. Central R. R. of New Jersey, 227 Pa. 137; Schley v. S. & N. Y. R. R., 227 Pa. 494; Underwood v. Pittsburgh Rys. Co., 238 Pa. 332; Walters v. American Bridge Co., 234 Pa. 7; Lerch v. Hershey Transit Co., 246 Pa. 473, 476; Milligan v. Phila. & Reading Ry. Co., 261 Pa. 344; McGovern v. Union Traction Co., 192 Pa. 344; Nugent v. Traction Co., 181 Pa. 160; Krenn v. Pittsburgh, etc., Ry. Co., 259 Pa. 443; Rauscher v. Phila. Traction Co., 176 Pa. 349; Borofsky v. W. Jersey & Seashore R. R. Co., 65 Pa. Superior Ct. 389.

A pedestrian has the advantage of power to control his actions instantly. By reason of its weight, velocity, and momentum, a street car cannot be so controlled. This fact a person approaching a crossing must take into consideration, and so must the court, upon the inquiry as to whether he has been reasonably careful: Moore v. Penna. R. R. Co., 242 Pa. 541; Waltosh v. Penna. R. R. Co., 259 Pa. 372; Kinter v. Penna. R. R. Co., 204 Pa. 497.

It is the duty of a traveler about to cross a street railway to listen where for any reason the view of an approaching car is obstructed: Dix v. Ridge Ave. Pass. Ry. Co., 15 Pa. Superior Ct. 350; McCauley v. Phila. Trac. Co., 13 Pa. Superior Ct. 354; Jones v. Greensburg J. & P. Ry. Co., 9 Pa. Superior Ct. 65; Trout v. Altoona & L. V. E. Ry. Co., 13 Pa. Superior Ct. 17.

Paul Reilly, for appellee.—The case was for the jury: Moore v. Penna. R. R. Co., 242 Pa. 541; Waltosh v. Penna. R. R. Co., 259 Pa. 372; Milligan v. Phila. & Reading Ry. Co., 261 Pa. 344; Wingert v. Phila. & R. Ry. Co., 262 Pa. 21; Wanner v. Phila. & Reading Ry. Co., 261 Pa. 273; DiGrazio v. Penna. R. R. Co., 261 Pa. 364; Hicks v. Altoona & Logan Valley El. Ry. Co., 258 Pa. 148; Miller v. Lehigh R. R. Co., 58 Pa. Superior Ct. 558; Lehigh Valley R. R. v. Brandtmaier, 113 Pa. 610; Simons v. Phila. & R. Ry. Co., 254 Pa. 507; Gerg v. Penna. R. R. Co., 254 Pa. 316; Crane v. Penna. R. R. Co., 218 Pa. 560; Powell v. Bessemer & L. E. R. R. Co., 65 Pa. Superior Ct. 315; Atlantic Ref. Co. v. N. Y. C. & S. L. R. R. Co., 67 Pa. Superior Ct. 320; Haughey v. Pittsburgh Rys. Co., 210 Pa. 363.

OPINION BY MR. JUSTICE WALLING, February 10, 1919:

This suit is the result of a grade crossing accident. Defendant's system of electric railway extends westwardly from Philadelphia to Media, passing through Drexel Hill in Delaware County where it has two tracks that to the north being west bound. About 800 feet west of its Drexel Hill station Rosemont avenue passes over the tracks at grade, as does Huey avenue some 600 feet further west. Plaintiff, who was forty-three years of age, resided with her brother on the west side of Rosemont avenue just south of the tracks and was employed in Philadelphia. On the evening of December 17, 1915, she was returning home in company with two of her brothers. They alighted from a westbound car at the Drexel Hill station and walked west along the north side of the tracks on Hillcrest avenue, to Rosemont avenue; and, because of the slush, went in single file, plaintiff between her brothers. It was about seven o'clock and by reason of a dense fog they became separated; the brother in advance crossed the tracks by the foot walk on the west side of Rosemont avenue, and the sister attempted to do likewise but as she cleared the second track was struck and very seriously injured by the overhang of one of defendant's eastbound cars. The other brother safely crossed on the east side of the avenue. The tracks at this crossing are on a curve, the outer side of which is to the south, so that the headlight of an approaching car does not light up the track far in advance. While the view to the west is open as far as Huey avenue, at that time, because of the thick fog, which admittedly prevailed, an approaching car could be seen only for a short distance. The grade there descends slightly to the east and the car ran about 100 feet after the accident. Plaintiff's evidence tends to show that no warning was given of the car's approach to the crossing, and the evidence justifies the conclusion that it was moving at least fifteen miles an hour. There were no gates, watchman or bell at this crossing, and it was not a stopping place for the cars. Defendant's evidence does not indicate with definiteness that any warning was given of this car's approach, between the sounding of the whistle at Huey avenue and the moment of the accident. The question of speed becomes important because of the fog, the curved track and unprotected condition of the crossing.

Plaintiff testified that she stopped, looked and listened just before stepping on the westbound track, and did the same again at about the middle of that track, then passed over the space (about six feet) between the tracks and was struck, as above stated, just as she cleared the last rail of the eastbound track. The presumption is that she used due care and the contrary is not conclusively shown. It is not clear that the car was visible when she committed herself to the crossing or that she then knew or should have known of its approach. There is evidence that the only sound made by the car was a rumble as it came to the...