167 Pa. Super. 592 | Pa. Super. Ct. | 1950
Opinion by
This is an action in trespass to recover damages for personal injuries sustained by the plaintiff when he was struck by defendant’s trackless trolley (or bus) at the intersection of 16th Street and Ridge Avenue in the city of Philadelphia. The jury returned a verdict in favor of the plaintiff in the amount of $900, defendant’s motion for judgment n.o.v. was granted by the court below on the ground that the plaintiff was contributorily negligent, and plaintiff took this appeal.
The verdict for the plaintiff is a finding that he was free from contributory negligence. Kulka v. Nemirovsky, 314 Pa. 134, 170 A. 26; Olson v. Swain, 163 Pa. Superior Ct. 101, 60 A. 2d 548. The question of his contributory negligence cannot he treated as one of law unless the facts and the inferences from them are free from doubt. If there is doubt as to either, the case is for the jury. Chidester v. City of Pittsburgh, 354 Pa. 417, 47 A. 2d 130; Coolbroth v. Penna. R.R. Co., 209 Pa. 433, 58 A. 808. He cannot be held contributorily negligent as a matter of law unless the evidence of it is clear and unmistakable. Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194; Schildnecht v. Follmer
The plaintiff, all conflicts having been resolved in his favor, is entitled to have the evidence supporting his verdict considered and all the rest rejected. Sorrentino v. Graziano, 341 Pa. 113, 17 A. 2d 373; Pinto v. Bell Fruit Co., Inc., 148 Pa. Superior Ct. 132, 24 A. 2d 768. Reviewing the evidence in the light most favorable to him and giving him the benefit of every doubtful or obscure fact and the reasonable inferences that a jury might deduce therefrom, as we are required to do (McCreery v. Westmoreland Farm Bureau Co-operative Assn., 357 Pa. 567, 55 A. 2d 399) the following facts are established by the verdict:
The intersection of Ridge Avenue, which runs approximately east and west, and 16th Street, running generally north and south, is controlled by traffic lights. A taproom is located at the northeast corner of the intersection and a drug store at the southeast corner. The accident occurred during the morning of October 9,1944, a clear day, as plaintiff was crossing Ridge Avenue from north to south on the east footwalk of 16th Street. Before leaving the north curb of Ridge Avenue, he looked east and saw defendant’s trackless trolley about 110 feet away from the intersection, and approaching it. The signal light then being in favor of traffic on 16th Street, the plaintiff, without again looking in the direction of the trolley but watching the light which continued green, proceeded to walk across the intersection, passing in front of an automobile travelling west on Ridge Avenue, which had been stopped for the red light governing traffic travelling east and west on Ridge Avenue. The defendant’s trolley swerved around this automobile, ran into the intersection, and struck the plaintiff when he was approximately in the center of the street.
The plaintiff’s failure to observe the defendant’s trolley after he left the curb does not convict him of negligence as a matter of law. The Supreme Court, in Cinquina v. P.T.C., 362 Pa. 546, 551, 67 A. 2d 109, Stated: “In Newman v. Protective M. S. Co., 298 Pa. 509, 148 A. 711, we held that plaintiffs cannot be legally convicted of being contributorily -negligent because,, af
The jury’s verdict is a finding that the operator of defendant’s trolley was negligent (Weismiller v. Farrell, 153 Pa. Superior Ct. 366, 34 A. 2d 45; Balzer v. Reith, 161 Pa. Superior Ct. 187, 54 A. 2d 64) and it is not contended otherwise. Consequently, the following citation from Shields v. P.R.T., 261 Pa. 422, 425, 104 A. 665, is applicable to the facts of this case: “The general rule ... is that while a person has no right to put himself in a position of danger and rely entirely on the assumption that another who controls the source of such danger will see that he is protected, yet everyone who exercises due care, according to the circumstances, has an abstract right to rely on the assumption that others will do likewise and use ordinary care to protect him and his property from injury: Young v.
Although the defendant concedes that the testimony of the plaintiff quoted earlier in this opinion would support the jury’s verdict, it contends that this testimony was later repudiated by the plaintiff. After he had given the quoted testimony, the plaintiff was shown a plan of the intersection and asked to designate the point from which he left the north curb of Ridge Avenue and started across the street. There is much dispute as to the location of the point designated. The record is certainly not clear and both at the argument before us and in memoranda submitted to us after the argument, opposing counsel disagree as to the location of the designated point. Defendant contends that the plaintiff designated a point not at the crosswalk but some 26 feet east of it — in other words, that the plaintiff attempted to cross Ridge Avenue between intersections, and that since this was the plaintiff’s last testimony, he is bound by it under the authority of Black v. P. R. T., 239 Pa. 463, 86 A. 1066.
Assuming, arguendo, that the plaintiff, when shown the plan of the intersection, did designate a point 26' feet east of the intersection, and that such designation is inconsistent with his previous testimony, the case is clearly distinguishable from the Black case. In that case, the Supreme Court stated, at page 466: “In his examination, the plaintiff’s statements of the occurrence were contradictory. On some of them he was entitled to go to the jury and on some he was not and the net result of his testimony was in doubt. If his exam
The judgment is reversed, and it is directed that judgment be entered by the court below on the verdict.