149 A. 477 | Pa. | 1929
Argued October 7, 1929. Seventh Avenue, a wide and much traveled street, extends through the populous Borough of Beaver Falls in a northerly and southerly direction. It is a wide avenue and from Twentieth Street north has a grass-plot in the center with a twenty-two feet paved cartway on either side, that to the east being northbound. There are, of course, sidewalks on each side of the avenue and Mrs. Carnagie has a store on the east side, a short distance north of Twentieth Street. On the early afternoon of October 11, 1926, Henry W. Goff, the plaintiff, a traveling salesman for a candy company, parked his Ford coupé in front of the store, headed north, and alighted therefrom. Soon thereafter, at the request of street sweepers, he reëntered his car and moved it back ten or twelve feet, near where another Ford coupé was parked. Goff had some sample cases in the right side of the coupé, because of which he entered and alighted therefrom on the left, the street side. While Goff was so moving his coupé, a large autotruck, owned by College Hill, the defendant borough, and loaded with ashes for use on its streets, was driven north in Seventh Avenue followed by a Studebaker car driven by the wife of *345 the defendant, Frank W. Bowers. The truck was seven feet wide and, being driven along the center of the northbound cartway, left a space of approximately seven feet between it and the curb at the grassplot. As the truck and the Studebaker proceeded north of Twentieth Street, Mrs. Bowers attempted to pass the truck and her right fender collided with the hub of the truck's left front wheel, causing its driver to lose control of the steering wheel, so the truck turned suddenly to the right, where, before landing against a tree, it struck plaintiff's coupé and pushed it onto the sidewalk. At this moment plaintiff, having moved his coupé, as above stated, was attempting to alight in the cartway with one foot on the running board and the other on or near the ground, so that his foot was caught and seriously injured between his car and the truck. The latter had come along the street at the rate of about twelve miles an hour and the Studebaker, when attempting to pass, was, of course, moving with greater speed. Goff, a very large man and familiar with the street, was alighting from his car without looking for approaching traffic and did not see either the truck or the Studebaker until the instant he was struck. Had he glanced to the south he would have seen the near approach of the large truck, so close in line with the left side of his car as to leave a clearance of not more than two feet. The jury found against both defendants, they having been jointly sued. Later, the trial court entered judgment against Bowers but in favor of the defendant borough non obstante veredicto. Bowers appealed from the judgment entered against him and plaintiff appealed from the judgment entered in favor of the borough.
In our opinion plaintiff was guilty of such contributory negligence as to bar a recovery against either defendant. As the motor traffic upon paved streets is becoming more extensive, the duty of a party to look before entering a cartway becomes more important. We have never departed from the rule stated in Harris v. *346
Commercial Ice Co.,
Plaintiff's car was not overturned, nor its seat hit, so had he remained therein he would in all probability have escaped injury and certainly the foot injury here complained of would not have occurred. Hence, stepping into the street was a contributing cause of such injury. Even slight contributory negligence will defeat recovery: Monongahela City v. Fischer,
Reisinger v. McConnell,
Furthermore, while we do not so declare as matter of law, it is probable that no accident would have occurred except for plaintiff's unfortunate act of stepping into the cartway as the truck approached. Mrs. Bowers was rashly attempting to pass it in an open space of about seven feet and she testified the truck so turned toward her that its front hub came in contact with her fender. Jones, the driver of the truck, said, in effect, that he did not know Mrs. Bowers was attempting to pass him; that he saw the two cars parked on his right and saw Goff getting out of his car, and was paying attention to him as he thought the danger was there and, while denying he turned into the Studebaker, says he turned over to *348 the left a very little and kept straight on. In attempting to pass through the narrow space, the Studebaker was only a few inches from the truck and this slight turn toward it to avoid Goff more than likely caused the contact and accident, although one or more witnesses said the truck kept a straight course until contact with the Studebaker. It is patent here that neither intentionally collided with the other. That the Studebaker cleared the rear and came in contact with the front hub of the truck shows that at least one vehicle was deviating from a straight, parallel course. Mrs. Bowers would not naturally veer toward the truck which she saw, while its driver, not sensing her presence, would instinctively bear to the left to give Goff, whom he did see, more clearance. In our view of the case, it is not necessary to consider the other very interesting questions suggested in the record.
The judgment entered for the defendant Borough of College Hill, non obstante veredicto, is affirmed and the judgment entered for the plaintiff and against the defendant, Frank W. Bowers, is reversed and here entered for the defendant, non obstante veredicto.