177 A. 346 | Pa. Super. Ct. | 1934
Argued October 17, 1934. Appellants, father and son, plaintiffs in an action to recover damages for injuries suffered by the minor in a collision at a street intersection, assign as error *65 the entry of a judgment n.o.v. for the defendant. This being the sole question involved, we will review the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference tending to support the verdicts.
The accident occurred at the intersection of North 46th Street and Haverford Avenue in the city of Philadelphia. North 46th Street meets Haverford Avenue on its north line at right angles. At the intersection, 46th Street as it leads to the south bears to the right, or west, by an angle of sixteen degrees. That street south of Haverford Avenue is twenty feet wider than it is north of that street, and the additional width is on the west side so that if the west curb line of 46th Street north of Haverford Avenue is projected southerly it intersects the south curb line of Haverford Avenue forty feet east of the west curb line of 46th Street south of Haverford Avenue. Haverford Avenue is forty-four feet in width between curbs and has on it two street car tracks.
On April 1, 1931, at about 11:00 A.M., while it was raining hard, the minor plaintiff was approaching the intersection from the west on Haverford Avenue driving a motorcycle. When the minor was about two hundred feet west of the intersection, he observed the defendant's car standing on 46th Street about two to four feet inside the north curb line of Haverford Avenue. At that time plaintiff was moving between the street car lines and the south curb at a rate of eighteen or twenty miles an hour, and as he approached the curb line of 46th Street to the south slowed down to four to six miles an hour. On approaching this curb line, he looked to the north again and saw the defendant's car still standing in the same position. He then continued east, looking to the south, and was struck by defendant's car driven by an employee when about fifteen feet west of the east curb *66 line of 46th Street south of Haverford Avenue and three feet south of the street car tracks. He had not seen the car approaching and admitted that there was not any other traffic on either street at the time of the accident.
We are all of the opinion that the questions of defendant's negligence and plaintiff's contributory negligence were for the jury. We have not overlooked the fact that it is as much the duty of a driver of a motor car crossing an intersection to use due care to avoid an accident when the driver of the other car is negligent as it is if the other was not negligent (Mehler v. Doyle,
It was the duty of the plaintiff not only to observe traffic coming from the north but likewise to watch for cars approaching from the south and for possible pedestrians on the crossings. The jury could have found from the evidence that the plaintiff observed the defendant's car in a standing position on the north side of Haverford Avenue when the minor plaintiff was two hundred feet west of 46th Street; that he moderated his speed so that he approached the intersection at a rate of from four to six miles an hour; that during this time he observed defendant's car standing still and that it was yet standing when he came to 46th Street; and that proceeding at a slow rate he arrived in the line of travel of vehicles coming north on 46th Street before he was struck. Under such circumstances, we cannot say as a matter of law that plaintiff was guilty of contributory negligence.
"Where the standard of care is fixed, and the standard of duty is defined by law and is the same under all circumstances, the failure to observe it may be declared negligence by the court; but when the standard shifts with the circumstances of the case, it must be submitted to the jury to determine what it is, and whether it has been observed": Thorne v. P.R.T. Co.,
The court below relied very largely on the case of Wescott v. Geiger,
The judgment is reversed, and it is directed that judgments be entered on the verdicts for the plaintiffs. *69