63 Pa. Super. 76 | Pa. Super. Ct. | 1916
Opinion by
When this case was before us, as reported in 54 Pa. Superior Ct. 400, the judgment was reversed, this court
On the retrial of the case, the testimony was substantially the same. The plaintiff, who was driving his own car, stated, “As I reached the corner of 17th and Walnut streets, I stopped the car, and looked up and down the street to see if there was anything coming down; that was a dangerous place; I was about 10 or 15 feet from the street car track; I could see up Walnut street 284 feet; there was nothing in sight; I started up the car and got as far as the middle of the trolley track, when my engine stalled; then I looked and saw a trolley car coming down 225 or 250 feet away; I was trying to start the engine of my automobile; there is a coil box on the car and a little button, and in most instances I could start the engine by turning this little button, but it did not work that time, and I was working at it trying to get it started; I wasn’t specially worried because I thought the street car was far enough away, they could see me and not run into me; there was a clear view and no obstruction; I noticed the motorman when he was a comparatively short distance away, and he seemed to be working on the brakes to stop the car; no signal was given; I used the emergency brake to stop
. To determine the effect to be given this testimony, the defendant submitted a carefully prepared point' for instruction to the jury, evidently framed on the opinion of this court in reversing the former judgment, as follows: “8. When the automobile of the plaintiff came to a standstill, upon the street car track, as the result of the unexpected failure of his engine to work, it was his duty to signal, with reasonable promptness, to those operating the approaching car, in order that they might know that the automobile could not be gotten off the track. As the plaintiff admits that he gave no signal of any kind, he failed in his duty and the verdict must be for the defendant.” To this the court answered, “This question is for the jury, and we cannot say as a matter .of law, that the plaintiff’s failure was negligence. It is suggested in the argument of counsel for the plaintiff, that the fact that the plaintiff was trying to start his car was notice, or a signal to the approaching street car that it was in distress and could not get off the track. You will determine how that is. The plaintiff ^himself says he was sitting in his car; he says he was trying to push the button to start it; you will determine how far that would indicate to any one that he was in distress; rather, wouldn’t it indi-' cate to the motorman of the approaching car that the plaintiff himself was satisfied he could go on, and there was no necessity for any signal, and therefore he gave
The viewpoint of the motorman was very different from that of the plaintiff. The motorman saw a stationary object obstructing the car tracks while he approached it for a distance of 250 feet. The plaintiff was busy with the machinery of the car in his effort to release himself from his hazardous place, momentarily expecting that he could move his automobile from the tracks. No signal, by voice or hand, would have given the motorman any further knowledge of the fact, that the car was stationary when he first came in view of it, and so remained until he struck it. The plaintiff could have
It is true that the motorman had a right to believe the automobile would move from the track, but this belief was based on a lack of knowledge of the conditions with which the plaintiff was dealing. The stationary object on the car track, when in full view of the motorman, gave effective notice of the danger, and it was his duty to approach it under proper speed, as he had at hand all the appliances to control the speed of the car. The question was purely one of fact, and was submitted in a clear and adequate charge. The opinion of this court was given a construction not intended, and we feel that it was not warranted, when the whole paragraph relating to the plaintiff’s duty is considered.
The judgment is reversed and record remitted with the direction to enter judgment on the verdict in favor of the plaintiff.