55 Pa. Super. 607 | Pa. Super. Ct. | 1914
Lead Opinion
Opinion by
The plaintiff was driving his automobile on First avenue, a public highway in the suburbs of Philadelphia. This avenue connects with Tyson avenue at right angles and there ends. On the east side of Tyson avenue there is located, and in public use an open roadway with a width of sixteen feet. In the center of Tyson avenue, the defendant owns a private right of way on which it operates a double line of trolley tracks. This construction is similar to that of steam railroads; heavy rails are fastened to wooden ties which are imbedded in stone ballast, and the whole right of way is inclosed by a heavy curb, for protecting the ballasted track, and is from four to twelve inches higher than the roadway on its eastern side.
The plaintiff approached Tyson avenue with the intention of turning north, but when he arrived at the intersection of the avenues, as he states: “when we got within one block of where we turned, we discovered that the tracks were a little elevated, and rather than risk an upsét, I turned across the track and there I stalled
The trial judge aptly described the situation in his charge — “Was it the carelessness of Mr. Taylor or the carelessness of the motorman, or the carelessness of both? If it was the carelessness of both, the verdict must be for the defendants, because a man who is partly careless cannot get a verdict. If it was the carelessness of Mr. Taylor, of course he cannot get a verdict. If it was the carelessness of the transit company alone, by the motorman, then the plaintiff is entitled to a verdict. The common sense of this case is the law of it.”
He took no proper precautions as he approached Tyson avenue, until, according to his own testimony, it was too late for him to make the turn and he did not even then stop his car, but took his chances in going over a double-track trolley line to get to the roadway on the other side, at a place where there was no. crossing: Houston v. Traction Co., 28 Pa. Superior Ct. 374.
Had it been a grade crossing it would have been his duty to approach it at such speed that the car would be under control as to stop it short of the track if the occasion demanded: Griffith v. Street Ry. Co., 214 Pa. 293.
In March v. Traction Co., 209 Pa. 46, it was held “What is having horses (or an automobile) under control is a matter that varies with the circumstances. To come to a right-angled street crossing in the dark at a trot is in itself strong evidencé of negligence. The plaintiff was bound to know, that it was a point of danger, and not only to keep such a lookout as would inform him of the approaching car, but also such control of his team as would enable him to stop on short notice of a threatened collision.”
As we said in Van Winckler v. Morris, 46 Pa. Superior Ct. 142, “An inanimate body of the weight of a heavy automobile, will not take a flying jump over a curb on to a pavement unless propelled by exceptional force,” and from the plaintiff’s own showing he could have turned into the roadway if he had approached it at a less rate of speed. He was at the wheel and in full control of the machinery that regulated the speed. Every reasonable deduction from the plaintiff’s testimony leads
The car tracks were on the property of the defendant company, and the plaintiff had no right thereon. Electric cars on their own property have a lawful right to go fast; rapidity of transit is no longer a mere convenience to the traveler, it has become a matter of vital interest to the general business of the community: Thane v. Traction Co., 191 Pa. 249; Gallagher v. B. & O., 52 Pa. Superior Ct. 568. It is the settled law of this state that a railroad company has the right to the exclusive possession of its tracks except at crossings; and that the person who enters upon the tracks at any other point than at such crossings, is guilty of negligence per se: Bailey v. Lehigh Valley R. R. Co., 220 Pa. 516.
The motorman on this express trolley car had no reason to anticipate the plaintiff’s presence on these exclusive tracks of the company, which were constructed to expedite the travel between a large city and a popular resort.
There was no grade crossing over Tyson avenue where First avenue joined it. The plaintiff’s negligent management of his car placed it in the hazardous place, and without his carelessness the accident would not have happened. As said by Judge Strong in P. & R. R. R. Co. v. Hummell, 44 Pa. 375, “If the use of a railroad is exclusively for its owners; or those acting under them; if others have no right to be upon it; if they are wrongdoers whenever, they intrude, the parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it. Ordinary care they must be held to, but they have a right to presume and act on the presumption, that those in the vicinity will not violate the laws; will not trespass upon the right of a clear track. Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act. If the law
The same rule is declared in Eastburn v. Express Co., 225 Pa. 33; Gillespie v. Railroad Co., 226 Pa. 31. This court followed it in Gallagher v. B. & O. R. R. Co., 52 Pa. Superior Ct. 568, which is fairly summarized in the syllabus, “A railroad company has the right to the exclusive possession of its tracks, except at crossings, and a person who enters upon the tracks at any other
The character of this defendant’s tracks and equipment make the same rule applicable here, and the plaintiff being on the tracks as a trespasser by his own negligent act, it not being alleged that there was wanton or reckless operation of the car, nor any evidence of such conduct, he cannot recover when his negligence not only contributed to the result, but was the sole cause of it.
The judgment is reversed.
Dissenting Opinion
dissenting:
Even if it be admitted that the plaintiff was a technical trespasser on the defendant’s private right of way, and that no duty rested on the defendant to keep a lookout for trespassers whose presence on the track it had no notice of or reason to expect, still it does not necessarily follow that the defendant was entitled to a verdict in its favor by binding direction. The statement of claim alleged that the plaintiff sustained damage to his property “by reason of the careless, negligent and willful disregard of the duty of said defendant” in certain particulars, which were then given, and concluded with a similar averment. There was evidence