83 Pa. Super. 217 | Pa. Super. Ct. | 1924
Argued March 13, 1924. This is an action of trespass to recover damages alleged to have been caused by the negligence of the defendant in the operation of his automobile. On December 18, 1921, between 3 p.m. and 4 p.m., the plaintiff was driving his automobile northwardly on Centennial Avenue in the Borough of Hanover, approaching Frederick Street at a right angle; at the same time the defendant was driving his automobile westwardly on Frederick Street toward Centennial Avenue. Frederick Street is thirty-four feet wide. When the plaintiff was at a point one hundred and three feet from the street intersection, he had an unobstructed view to the east on Frederick Street for a distance of sixty-six feet. As he moved northwardly from that point, the distance he could see in that direction increased rapidly. Just before he reached the curb line of Frederick Street, he could see almost a square to the east. He and the other occupant of his car testified that when they arrived at that point and looked to the east, the defendant's automobile was not in sight. Immediately before the plaintiff committed himself to the crossing of Frederick Street, he observed on the north side of that street two pedestrians who were about to cross High Street, which is the name given to the continuation of Centennial Avenue, to the north of Frederick Street. The plaintiff testified that he looked to the right for approaching traffic just after committing himself to crossing Frederick Street, but that he did not look again because he was watching the two pedestrians. His car was struck by the defendant's car on its right side near the rear door when it was *219 about the center of Frederick Street. There was evidence that the plaintiff's car was moving at the rate of about seven or eight miles an hour, and that the defendant's car was moving at about fifteen miles per hour and that the latter gave no warning of its approach to the crossing. The defendant testified that he did not see the plaintiff's car until he was within ten feet of it. A verdict was rendered for the plaintiff, on which judgment was entered, and the defendant has appealed. The only question raised by the assignments of error is whether the defendant is entitled to judgment because the plaintiff was guilty of contributory negligence as matter of law.
The appellant contends that the case calls for the application of the rule of law, governing the case of one who is about to cross a railroad track, that where a person fails to see that which is plainly obvious, such person is clearly guilty of contributory negligence. He urges that the plaintiff must either have seen the defendant's automobile and have taken his chances of crossing in front of it, or that he did not look, and that in either case he was guilty of contributory negligence as matter of law. In support of his contention, he cites Miller v. West Jersey S.R.R. Co.,
The assignments of error are overruled, and the judgment is affirmed. *221