Speakman v. Philadelphia & West Chester Traction Co.

• Decision Date: 18 April 1910
• Docket Number: 73-1909
• Citation: 42 Pa.Super. 558
• Parties: Speakman v. Philadelphia & West Chester Traction Company, Appellant
• Court: Pennsylvania Superior Court

42 Pa.Super. 558

Speakman v. Philadelphia & West Chester Traction Company, Appellant

No. 73-1909

Superior Court of Pennsylvania

April 18, 1910

Argued November 16, 1909

Appeal by defendant, from judgment of C.P. Chester Co.-1909, No. 78 on verdict for plaintiff in case of Frank L. Speakman v Philadelphia & West Chester Traction Company.

Trespass to recover damages for personal injuries. Before Hemphill, P J.

The facts appear by the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 1,455. Defendant appealed.

Error assigned among others was in refusing binding instructions for defendant.

Reversed.

Alfred P. Reid and William I. Schaffer, for appellant. -- The appellee did not look and listen for an approaching car, as required by law: Carson v. Federal Street, etc., Railway Co., 147 Pa. 219; Ehrisman v. E. Harrisburg City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Phila. Traction Co., 150 Pa. 187; Callahan v. Traction Co., 184 Pa. 425; Pieper v. Union Traction Co., 202 Pa. 100; Warner v. People's St. Ry. Co., 141 Pa. 615; Trout v. Electric Railway Co., 13 Pa.Super. 17; Potter v. Railway Co., 19 Pa.Super. 444.

If the roadway at the side of the track, is wide enough to allow the safe passage of a vehicle, one who drives so close to the track as to be struck by an approaching car, or who stops his vehicle so close to the track as to be struck by a car which he has just turned from the track to avoid, is guilty of contributory negligence: Morrow v. Del. County & Phila. Elec. Ry. Co., 199 Pa. 156; McCracken v. Traction Co., 201 Pa. 378; Keenan v. Traction Co., 202 Pa. 107; Kane v. Ry. Co., 181 Pa. 53; Warner v. Ry. Co., 141 Pa. 615; McClelland v. Rys. Co., 216 Pa. 593.

The person who puts himself within the danger limits of an approaching car is negligent: Warner v. People's St. Ry. Co., 141 Pa. 615.

It is the duty of a person traveling on a highway to keep a safe distance from the tracks of a street railway, failing which he is negligent: McClelland v. Pittsburg Rys. Co., 216 Pa. 593.

Walter S. Talbot, with him Joseph H. Baldwin, for appellee. -- In the matters where contributory negligence is involved the measure of duty is ordinary and reasonable care, and where the degree of care varies according to the circumstances, the question of negligence is always for the jury: Davidson v. Schuylkill Traction Company, 4 Pa.Super. 86; Gates v. Penna. R. R. Co., 154 Pa. 566; Callahan v. Traction Co., 184 Pa. 425; Barto v. Traction Co., 216 Pa. 328; Jones v. Street Ry. Co., 9 Pa.Super. 65; Mortimer v. Traction Co., 216 Pa. 326; Iseminger v. York Haven Water & Power Co., 206 Pa. 591; McCracken v. Traction Co., 201 Pa. 378.

Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.

OPINION

MORRISON, J.

An examination of the evidence convinces us that the appellant's history of the case is substantially fair and correct, and from it we gather the following facts: A public road runs from the fair grounds westwardly to West Chester -- a distance of about a mile. The track of defendant is located on the south side of said road all of said distance. Bolmar street crosses the road and the railway tracks at right angles, and is the eastern boundary of the borough of West Chester. From a point about 800 feet east of Bolmar street, at Cottage Hill, there is a descending grade westward, coming to a level a short distance east of Bolmar street. From Bolmar street westward there is a brick pavement between the railway tracks and for about twenty inches on either side. The distance from the fair grounds to Bolmar street is about 5,000 feet and the running time of the cars between these points is four minutes.

On September 11, 1908, there was an agricultural fair in progress at the fair grounds, and the railway cars were running to and from West Chester every fifteen minutes, and they were very much crowded. On that day the plaintiff was attending the fair and was returning therefrom to West Chester in an automobile. The back curtains and the two rear side curtains (about eighteen to twenty inches in width), were down. The plaintiff was driving the machine himself and occupied the front seat on the right-hand side of the machine with Mr. Satterthwaite on the left side of the same seat. The automobile was running at about ten to fifteen miles per hour. When the plaintiff approached Bolmar street he turned his machine to the left -- a distance of five or six feet -- and ran the left wheels thereof upon the brick pavement on the north side of the north rail of the street railway track. His testimony shows that he was aware that he was too close to the trolley track for a car to clear his machine if one should come from the rear traveling faster than the automobile was going. After going about 150 feet on this pavement, plaintiff's machine was struck by a street car and badly damaged. For a considerable distance in the rear of the plaintiff's automobile at the time of the accident, the street is almost a straight line and a car upon the track can be seen for a long distance. When the plaintiff turned his automobile toward the trolley tracks, the car that ran him down was about 300 feet from Bolmar street (according to the testimony of plaintiff's witnesses). The plaintiff did not stop his automobile. He did not look back. He looked to the side and ahead. He said he did not look back because it was not safe -- that the driver of an automobile should look ahead. He said it did not occur to him that there were any cars going to run fast enough to hit him.

We also have the testimony of Reuben Satterthwaite. He said when they came to the brick pavement, they pulled over to the left and he did not do anything except look out of the left side of the machine. They did not stop. He said he looked back a considerable distance but that he only looked out at the side of the car. He did not look out of the back of the machine, but claimed that by looking out of the side he could see back of the machine. But this testimony is of little consequence because other witnesses of the plaintiff showed that the trolley car was about 300 feet from Bolmar street when the plaintiff ran his car onto the brick pavement.

We consider the evidence sufficient to warrant the jury in finding that the car that struck the plaintiff's automobile was being operated negligently. However, it is very probable that the motorman was deceived by the fact that the automobile was not on the track and he may have thought there was room enough for his car to clear the automobile. This theory would make the case similar to Hause v. Lehigh Valley Transit Co., 38 Pa.Super. 614. But in that case we held that there was sufficient evidence from which the jury could find that the defendant was guilty of negligence.

Now, as to the contributory negligence of plaintiff, the inference is irresistible that if plaintiff's companion had looked back of the car along the track he must have seen a car approaching at a speed that would indicate danger to the automobile. It has many times been decided that it is idle for a witness to testify that he looked when it is clear that if he had looked, he would have seen the danger. If plaintiff's companion had looked back along the track, how easy it would have been for the plaintiff, on notice that a car was approaching, to have turned out a little and let the car pass.

In McCracken v. Traction Co., 201 Pa. 378, 50 A. 830, it was decided as indicated in the syllabus: " If he looked he saw that it was approaching at a high rate of speed and could not rely upon the presumption that its speed was lawful and take the chances of crossing ahead of it. If he looked he was guilty of contributory negligence and if he did not look he was likewise guilty."

In the present case, the plaintiff does not pretend that he looked back or that he took any precaution to prevent such an accident as the one that occurred except to run his automobile at a speed of ten or fifteen miles an hour too close to the trolley track for a car to clear his machine. If he was relying on his companion to look back and warn him of an approaching car, it is absolutely certain that the latter did not discharge his duty because he neither saw nor heard the car until it struck the automobile. From this state of facts we are unable to reach a conclusion that the plaintiff was not guilty of contributory negligence. If it was not careless for him to drive his automobile in the manner above indicated, without looking back along...