41 Pa. Super. 52 | Pa. Super. Ct. | 1909
Opinion by
The verdict of the jury charged the defendant with negligence and acquitted the plaintiff of contributory negligence. The learned judge, however, on the motion for a judgment non obstante veredicto reached the conclusion that contributory negligence of the plaintiff was shown and that the verdict could not be sustained. This result was apparently arrived at by applying the doctrine of Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Urias v. R. R. Co., 152 Pa. 326; Crooks v. Pittsburg Rys. Co., 216 Pa. 590, and kindred cases which hold that where one drives or walks directly in front of an approaching car and is struck at the instant he sets his foot between the rails there is but one inference which can reasonably be drawn from the facts and that is the inference of contributory negligence. These authorities, however, are only applicable to the crossing of railroad tracks, where the duty of care is absolute because of known danger in the particular place. The track has a permanent location and the movement of cars is restricted thereto. The position of the track is usually known to the traveler,as is also .the fact that cars are likely to be moving rapidly on the rails. But it is not practicable to apply this doctrine to the use of automobiles on the public streets of a city. They have no prescribed course or direction or time of appearing and are not to be distinguished from other conveyances in respect to the rights of persons lawfully using the streets. Pedestrians and persons using vehicles of other types have equal rights with those who use self-propelling vehicles on the public streets. A reciprocal duty of care exists among them. The measure of this duty is ordinary and reasonable care according to the circumstances. In places where many pass or congregate a greater degree of care is required than where there are few travelers. Where there is doubt as to the inference to be drawn from the facts and the measure of duty is reasonable care and the degree of that care varies with the circumstances the question of negligence is one for the jury: Penna. R. R. Co. v. Peters, 116 Pa. 206; Gray v. R. R. Co., 172 Pa. 383; Haas v. Ry. Co., 202 Pa. 145; Cohen v. R. R. Co., 211 Pa. 227. The evidence brought up with the record we think brings this case within the
That the evidence supports an inference of negligence on the part of the defendant we think cannot be successfully disputed. The space between the car and the curb was narrow. Employees of the street car company were in the immediate vicinity and one of them barely escaped from a collision with the automobile. The defendant, according to her own admission, recognized that “ there might be a person step off the car ” and she did not see the plaintiff until he was struck. She testified “I never saw the man until he was over the dashboard.” That the automobile was moving rapidly and within a few inches of the side of the car is shown by the plaintiff’s evidence. Taking into consideration the testimony as to the character of the place
The judgment is reversed and judgment is now entered against the defendant and in favor of the plaintiff on the verdict.