367 Pa. 579 | Pa. | 1951
Lead Opinion
Opinion by
Forest Avenue in the Borough of Bellevue runs in a northerly and southerly direction. Double street car tracks of the Pittsburgh Railways Company are located in the middle of the avenue which, proceeding in a northerly direction, is paved from curb to curb up to and including its intersection with Maryland Avenue. North of Maryland Avenue there is no paving between the rails of the street car tracks but the paving of the street continues on both sides of the tracks. At about 1 a.m. on July 14,1946, Frank R. Guca was driving his father’s automobile northerly on Forest Avenue, straddling the northbound trolley track; After he crossed
Frank Guca, the father of the deceased, instituted suit against the railways company and the borough, seeking as administrator of his son’s estate damages under death and survival actions and in his own right to recover damages to his automobile. A jury rendered verdicts in favor of the plaintiff iü all of the actions totalling $9,898.28. The defendants made no motions for new trial, but filed motions for judgment non obstante veredicto. The court refused the motions and these appeals are from the judgments entered on the verdicts.
Both the railways company and the borough contend that the deceased, Frank B. Guca, was guilty of contributory negligence as a matter of law. The borough further contends that plaintiff failed to establish any negligence on its part imposing liability. Negligence on the part of the motorman of the trolley car is practically admitted by the railways company. At least no complaint is made of the jury’s finding in this regard.
Considering the facts and all reasonable inferences to be deduced therefrom most favorably to the plaintiff as we are obliged to do in light of the verdicts
Appellants do not top seriously press the foregoing contention. Rather they rely upon the deceased’s actions after the automobile became stalled between the tracks. The testimony as to what happened then comes from Edith E. Wolff who was the only passenger, sitting in the front seat. Guca attempted to start the motor, without success. Then he got out of the car and pushed it a, short distance. He then made another attempt to start the motor. Failing in this, he again attempted to push the car off the unpaved track but was unsuccessful, apparently because the left wheels had become wedged against the outside rail. He then observed a northbound trolley approaching. Standing beside the left front door, he waved his arms as a signal to the operator of the street car to stop, and at the same time moved backwards toward the front of the stalled vehicle. He had taken off his coat and was wearing a white shirt and light colored trousers. The automobile was cream colored. When it became apparent that the
The presumption exists that the decedent exercised due care for his safety: Perry v. Pittsburgh Railways Company, 357 Pa. 608, 612, 55 A. 2d 354. The defendants contend that when the deceased saw the trolley was not going to stop, he should have moved off the track to his right. The automobile blocked him to his left and we cannot condemn his action as a matter of law in view of the emergency with which he was confronted. Contributory negligence may be declared as a matter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree as to its existence: Hinton v. Pittsburgh Railways Company, 359 Pa. 381, 59 A. 2d 151; Keiser v. Philadelphia Transportation Company, 356 Pa. 366, 51 A. 2d 715; Carden v. Philadelphia Transportation Company, 351 Pa. 407, 41 A. 2d 667.
It was reasonable for Guca to remain on the tracks as the best vantage point under the circumstances to catch the motorman’s attention and thus avoid collision with the automobile with consequent injury to his passenger, Miss Wolff, who had remained seated
The defendant, Pittsburgh Railways Company, owned the fee of Forest Avenue north of Maryland Avenue and the borough contended that it did not have such control thereof as to impose upon it any
Assuming that the borough had inadequately warned the traveling public of the abrupt change in the paving, such negligence on its part was not a proximate cause of the accident. Forest Avenue ran in a straight direction from a point 400 to 500 feet south of Maryland Avenue to the scene of the accident, which occurred about 100 feet north of the intersection. At this point the avenue gradually curved to the left, but under the evidence the automobile was within the range of the trolley’s headlight which on high beam gave visibility for 125 feet. Miss Wolff, who remained
In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act: Irwin Savings & Trust Company v. Pennsylvania Railroad Company, 349 Pa. 278, 37 A. 2d 432; Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295. While the borough council in the exercise of ordinary intelligence and prudence could foresee that inadequate warning of the change in paving might result in damage to an automobile and its occupants, and even that it might become stalled thereon, it was not required to foresee the extraordinary negligence of the motorman of the trolley car who failed to see the automobile until he was 15 feet from it, although the trolley approached on a straight stretch with its lights affording visibility of 125 feet. In Irwin Savings & Trust Company v. Pennsylvania Railroad Company, supra, the Court quoted as follows from Passenger Railway Company v. Trich, 117 Pa. 390, 399, 11 A. 627: “ ‘But things or results which are only possible cannot be spoken of as either probable or natural. For the latter are those things or events which
In our opinion, therefore, the negligence of the motorman intervened and superseded that of the borough, thereby relieving the latter from liability in this action.
The judgment against Pittsburgh Railways Company is affirmed; the judgment against the Borough of Beilevue is set aside and here entered in its favor. Justice Bell files dissenting opinion.
Dissenting Opinion
Dissenting Opinion by
It was neither prudent nor necessary for the deceased to go on to or to remain within the trolley tracks in order to signal the - approaching trolley to stop. Furthermore, the emergency was created by the deceased and when he saw the trolley was not going to stop he had ample time to get off the tracks. I would hold the deceased guilty of contributory negligence as a matter of law and would here enter judgment n.o.v. for both defendants.