169 A. 422 | Pa. Super. Ct. | 1933
Argued October 10, 1933. This action in trespass was originally brought by the plaintiff against the Philadelphia Rapid Transit Company as a result of a collision between the plaintiff's automobile and a taxicab. The original defendant filed an affidavit of defense, denying that it owned or operated any taxicabs, and thereafter plaintiff issued a writ of sci. fa. joining the Yellow Cab Company as additional defendant. After the institution of the suit the plaintiff died, and his executors, Grace V. Stroh, Lottie Pearl Seiler and Lloyd R. Seiler, were substituted as plaintiffs in his stead.
According to plaintiffs' testimony, Felix G. Seiler, the deceased, on September 24, 1929, about 6:15 p.m., parked his automobile, facing north, with its right wheels against the east curb of Forty-second Street, between Walnut and Chestnut Streets, Philadelphia. Seiler opened the door on the left side toward the cartway and had one foot on the running board preparing to alight, when a northbound taxicab of the additional defendant, which he neither saw nor heard prior thereto, struck the edge of the partly opened door and broke it from its hinges.
The case was tried before Judge GLASS, without a jury, who found for the plaintiffs against the additional defendant, in the sum of $77.50. This appeal was taken. *71
The appellant contends that (1) there was no evidence of negligence on the part of the Yellow Cab Company; (2) Seiler was guilty of contributory negligence in opening the door without looking or listening for an approaching vehicle. The court below relied mainly on Roberts, Admr. v. Freihofer Baking Co.,
We are all of the opinion that there was no evidence of the additional defendant's negligence, and that the damage to the car resulted from Seiler's want of care.
Judgment is reversed, and now entered for defendant.