157 A. 36 | Pa. Super. Ct. | 1931
Argued October 1, 1931. Defendant appeals from judgment for plaintiff in a suit tried without a jury. Defendant was charged with negligently operating a street car that collided with a large covered motor truck belonging to plaintiff. The only witnesses called were the person who was in charge of the motor van and the man who repaired it. The first witness testified that he drove the truck to 2440 Germantown Avenue where he stopped, with the truck headed southward, for the purpose of unloading wall paper. He states that he left "sufficient clearance" between the truck and the trolley car track to permit southbound street cars to pass, and fixes the distance at "some 6 to 8 inches" from the *389 tracks; that the accident occurred while he was inside the truck "getting some wall paper." The evidence indicates that the covered part of the truck was 6 feet wide, and that for the purpose of closing the end, there were two doors, each 3 feet wide, and a tailgate, the doors opening outward and closing over the tailgate. The evidence does not show how long the truck had been there before it was damaged. The witness testified that he had "shut the rear door," but he does not clearly specify whether it was the right or the left rear door; that he was in the truck "towards the front of the truck, just stooped down to pick up the bundle" when there was a collision. He states that then he "started out but the right rear door came around and knocked [him] down again; then [he] got out and the trolley car was stopped." The trolley car was then standing "about a foot in front of the truck," the truck being 20 feet long. He states the "rear door was lying out in the street, hinges was broke where the rear door was on." As he had testified that the right rear door struck him while he was in the truck, we must infer that the rear door that was lying in the street was the left rear door, that is, the one which, if opened, would open toward the street car track, and which he stated, in the answer already quoted, he had closed when he entered the truck to get the bundle of paper. The accident happened on a clear day.
That is substantially all the evidence from which it must be determined whether or not there is liability. The learned court below, and also the appellee here, rely on Latella v. Breyer Ice Cream Company,
The judgment is reversed and is now entered for the defendant.