97 Pa. Super. 492 | Pa. Super. Ct. | 1929
Argued October 15, 1929. Plaintiff's half-ton Ford truck was struck by a northbound trolley car before the truck completed a crossing of the northbound tracks in making a left turn from Ansbury Street into Fifth Street in Philadelphia. Ansbury Street is 36 feet wide between curbs; Fifth Street is 50 feet between curbs and contains both northbound and southbound street car tracks. The distance from the westernmost rail of the southbound track to the easternmost rail of the northbound track is 14.88 feet, the distance between rails being 5.19 feet with a "dummy" of 4.5 feet between the tracks. The sidewalks on Fifth Street are 12 feet wide. Plaintiff drove east on Ansbury Street at the rate of about 12 miles an hour and when he reached the house line of Fifth Street he looked to the right and saw a trolley car moving northward "about a block" away. On his left, he saw a truck coming southward on Fifth Street. He testified that he looked a second time "as [he] started across the southbound track" when he saw the trolley car, which "he judged" was "about a half a block away or a little more than that." He describes a third look "just before [he] reached the northbound track" and says that then the trolley car was "about a half a block away." Asked to state how long "half a block" was, he replied, "I don't know. I judge between 100 and 150 yards away anyhow." Asked whether he meant "anywhere from 300 to 450 feet" he replied that he did. He states that he "went between 10 and 15 feet between the last time [he] looked and the time [he was] `hit';" that he was in low gear *494 and "not going over 3 or 4 miles an hour because of the condition of the street." His truck was "pushed 10 or 15 feet," by the street car. That is the testimony most favorably supporting the verdict as we must take it in considering the contention that the court should have entered judgment for the defendant n.o.v.
The defendant's evidence, which was considered by the jury, and which we must also consider to the extent that it favorably supports the verdict, places the northbound street car much closer to the plaintiff's truck when driven over the northbound track than plaintiff's evidence states. It was, of course, the duty of the jury to find the fact, — to determine what that distance was, — in the light of all the evidence offered by both sides, and having found the fact, to find whether the parties exercised appropriate care in the circumstances. It may well be that the jury concluded that the northbound car was not 300 feet away (as the plaintiff said) when he turned into the northbound tracks, but that it was not as close to Ansbury Street as defendant's witness testified.
Appellant contends that "incontrovertible mathematical tests or physical facts" show that plaintiff's account of the collision cannot be true, and cases are cited in which that principle was applied. It is the duty of the defendant who wishes to apply that principle to see that all relevant facts necessary for its application are established: Donovan v. P.R.T. Co.,
Judgment affirmed.