59 A.2d 151 | Pa. | 1948
This is an appeal from the decision of the Superior Court, reversing the judgment on a verdict in favor of plaintiff in a negligence action. The single question is whether plaintiff,as a matter of law, was guilty of contributory negligence, justifying the entry of a judgment for defendant non obstanteveredicto.
Reading the testimony in the light most advantageous to the plaintiff, and resolving all conflicts and drawing all reasonable inferences therefrom in his favor, as the court is required to do on a motion for judgment n. o. v. (Scholl,Admrx., v. Philadelphia Suburban Transportation Company,
The court below ruled that under these facts the question of the negligence of the defendant and the contributory negligence of the plaintiff was for the jury. The Superior Court, however, decided that plaintiff was guilty of contributory negligence asa matter of law which barred a recovery. This appeal followed. *384
In Ashcraft v. C. G. Hussey and Company,
See also: Caulton v. Eyre Co., Inc.,
We are therefore required to examine the evidence. If the contributory negligence of plaintiff is so clear that there is no room for a difference of opinion among reasonable persons, a judgment for defendant n. o. v. must be entered. If otherwise, the question of contributory negligence is for the jury.
Plaintiff in driving his car straddling the track of the defendant street car company was not negligent per se. Street cars do not have the exclusive use of that part of the public street on which their tracks are laid. It was said by Justice MITCHELL in Abbie Warner v. Peoples' St.-Railway Co.,
See also: Ruthberg et ux. v. Philadelphia Rapid Transit Co.et al.,
Plaintiff was stopped on defendant's tracks by circumstances beyond his control. When his motor stalled and his vehicle continued to drift along, he attempted to start the motor again while the car was moving under its own momentum. The fact that the automobile came to a dead stop without plaintiff attempting to guide it off the tracks to the concrete portion of the highway was not such action as could be classified as contributory negligence as a matter of law. Plaintiff could have reasonably anticipated that his stalled vehicle, with red taillights and headlights burning, would have been seen by a motorman approaching over a straight road of three quarters of a mile to his rear.
Neither was plaintiff's act of returning to the car after it remained stalled contributory negligence. The testimony reveals that he looked to the rear before getting back into the car and saw no lights of an approaching street car, nor did he hear a bell or warning of any kind. His head and taillights were burning as a warning to an approaching motorman. It is extremely doubtful whether any signal by voice or hand would have given the motorman greater knowledge of plaintiff's hazardous position.
Defendant's negligence and plaintiff's contributory negligence were clearly for the jury. The jury by its *386 verdict exculpated the plaintiff from any contributorynegligence.
The Superior Court seeks to distinguish Mead v. CentralPennsylvania Traction Company,
The judgment is reversed and the case remitted to the court of common pleas to enter judgment on the verdict.