273 Pa. 429 | Pa. | 1922
Opinion by
Plaintiff sued to recover damages for personal injuries ; at the close of his case the court entered a non-suit which it refused to take off; plaintiff appeals.
Defendant was backing a closed automobile out of an alley extending at right angles to the street on which the work car was passing; when the car came opposite the alley the backing automobilo crashed into it, seriously injuring appellant. There was full opportunity for the defendant to observe the approaching car.
The view of the court below, when it entered the non-suit, and the contention of appellee’s counsel before us, is that plaintiff, in occupying the position on the car he did, which was one of known danger, was guilty of contributory negligence, and therefore cannot recover, relying upon such cases as Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Wood v. Chester Traction Co., 36 Pa. Superior Ct. 483; Thane v. Scranton Traction Co., 191 Pa. 249; Bainbridge v. Union Traction Co., 206 Pa. 71; Kirchner v. Oil City Street Railway Co., 210 Pa. 45; Gaffney v. Union Traction Co., 211 Pa. 91; McDade v. Phila. Rapid Transit Co., 215 Pa. 105; and Harding v. Phila. Rapid Transit Co., 217 Pa. 69, holding it to be negligence to ride on the platform or side-step or running-board of a car. These cases would be controlling against plaintiff’s right of recovery against his employer, the operator of the car, but as the suit is against a third person, the owner and operator of the automobile which backed into the car, they have no application. The car had the same privilege to traverse the street as any other vehicle, and those riding on it, the right to assume that other users of the highway would
In McClung v. Penna. Taximeter Cab Co., 252 Pa. 478, where there was a collision between two automobiles, plaintiff at the time of the accident was sitting on the floor of one of them with his feet on the running-board; there we said, speaking of his position: “It bears no analogy to the case of a passenger voluntarily standing on the bumpers or footboard of a car, or riding with his feet between a car and the engine. The cause of the accident was the violent collision, resulting, as the jury found, from defendant’s negligence, and not because of the place plaintiff occupied on his car. His being there was merely a condition, not the cause of the accident. A person injured by the negligence of another is not deprived of all remedy merely because at the timei he was occupying an unusual position in a conveyance, unless he thereby cooperated in causing his injury.” While the circumstances were different in Little v. Central District & Printing Telegraph Co., 213 Pa. 229, the principle there invoked is applicable here: “It is not of itself negligence for a person riding in a wagon on a public highway to permit his feet or arms to extend beyond the side of the vehicle. When one is injured while occupying such position, it is for the jury to determine whether he was, at the time, exercising the care required by the circumstances, unless the danger was so apparent that a reasonably prudent person would not have taken the risk.” It appeared in Thirteenth and Fifteenth
It is clear from the foregoing authorities that, under the facts as they were established, plaintiff is entitled to have his case passed upon by a jury and the court was in error in entering a nonsuit.
The order refusing to take off the nonsuit and thet judgment in favor of defendant are reversed, with a procedendo.