50 A.2d 537 | Pa. Super. Ct. | 1946
Argued November 22, 1946. This appeal is from an entry of judgment n.o.v. for the defendant in a trespass action. *292
At about 10:30 o'clock on the morning of May 27, 1943, a clear day, the plaintiff was walking south on Preston Street in Philadelphia. When he reached the northwest corner of that street and Haverford Avenue he heard the ringing of a bell or gong and saw a fire engine, which was returning from an alarm of fire, proceeding south on Preston Street toward the firehouse, which is on the northeast corner of Haverford Avenue and Preston Street. He went to the center of the intersecting streets and stood in the middle of the trolley track which traverses Haverford Avenue. The only traffic on this avenue at that time was the defendant's trolley car at 41st Street, a distance of approximately 420 feet, moving eastward at a speed of 25 to 30 miles per hour. When the car was about 400 feet away the plaintiff, acting as a volunteer and probably with the intention of performing a civic duty of preventing collision, as Preston Street is not a regular trolley stop, held up his hands to warn the motorman, whom, the plaintiff said, he could see was looking at him, of the approaching fire engine. He continued to look at the trolley until it was some indefinite point between Budd Street, 230 feet away, and Ludwick Street, approximately 75 feet distant. He testified: "When the trolley car got to Budd Street I turned around and had my hands up and waved for the fire engine to come on, and the trolley car kept moving toward me."
The defendant's evidence was to the effect that this plaintiff jumped in front of the trolley when it was 5 to 20 feet from him.
The trial judge, following the decision in Kasanovich v. Georgeet al.,
We think that neither the doctrine of voluntary assumption of risk, nor wanton misconduct, which are closely related and founded on the same fundamental principles, has any application so far as plaintiff's evidence of his conduct is concerned, and that is all that need be considered in passing upon defendant's motion for judgment n.o.v. We may state in passing that "reckless disregard" for another's safety is preferred to "wanton misconduct" by some text writers. See § 500 Restatement of Torts and Eldredge's "Modern Tort Problems", pp. 179, 180. It could fairly have been assumed by Elliott that the motorman saw him standing on the track giving a signal for the trolley car to stop and that he would not be run down. Whether or not the plaintiff's conduct created an unreasonable risk involving a high degree of probability of harm to himself was a question for the jury's determination.
The court, in invoking the doctrine of voluntary assumption of risk relied on several cases in Pennsylvania to which we will briefly refer, as warranting the disposal *294
of this case as a matter of law. In De Wald v. Hines,
In Magyar v. P.R.R.,
In McMichael v. P.R.R.,
Those cases with their dissimilar facts give no aid in the determination of this appeal.
According to text writers the term voluntary assumption of risk is confusing as it is used in a dual sense. First, as synonymous with the term contributory negligence, which implies negligence upon the part of both *295 plaintiff and defendant, and second, where there is no question of defendant's negligence, but where the risk is voluntarily assumed in the course of a master and servant, or some other voluntary, relationship such as landowner and licensee, guest and passenger, etc.: Harper on Torts (1933), 289, 296, §§ 130, 131; Bohlen, Voluntary Assumption of Risk (1906), 20 Harvard Law Review 14.
Section 893 of Restatement of Torts states and some decisions in other jurisdictions, to which reference will be made later, hold that if the plaintiff voluntarily and unreasonably exposes himself to a known danger created by defendant's negligence, he is barred from recovery for any injuries sustained. Notwithstanding the rationale of the doctrine of assumption of risk, it cannot be said as a matter of law that Elliott was fully conscious of the risk he incurred, and recklessly disregarded his own safety. One may not be guilty of even contributory negligence in failing to anticipate that a trolley car will not comply with a timely warning to stop: Van Note v. P.T.C.,
Street cars do not have the sole use of streets: McFarland v.Consolidated Traction Company,
In McPherson v. Philadelphia Rapid Transit Co.,
What we have heretofore said applies to a large extent to plaintiff's alleged "wanton negligence" or, in other words, to his reckless misconduct. Although there is a conflict of decisions, the weight of authority holds that such misconduct on the part of a plaintiff or decedent, which contributes to the injury or death, will prevent recovery although the defendant's conduct was also of the same degree of recklessness. The law in such a situation leaves the parties where it finds them: Annotation, 41 A.L.R. 1379. To bar a recovery a plaintiff must act in a reckless disregard of his own safety to practically the same extent that defendant acts in a reckless disregard of plaintiff's safety: Sections 482 and 503 of Restatement of Torts.
This plaintiff may have been meddlesome in volunteering to direct traffic, but that does not warrant a holding as a matter of law that he cannot recover for the injuries he sustained.
The additional cases cited by the court below and the appellant are not applicable to the case in hand. For instance, in Gill v.Arthur, (Ohio)
In Price v. Schroeder, (Cal.)
In Walsh v. Gazin, (Ill.)
It is unnecessary to discuss the other cases cited by the court below and appellant (Annotation 41 A.L.R. 1379) as, in our judgment, they do not control this case for the reasons hereinbefore set forth.
The judgment is reversed, record is remitted to the court below to pass upon the undisposed of motion for a new trial. *298