Opinion bt
This is аn appeal from the judgment of a compulsory nonsuit entered in an action brought to recover damages for injuries resulting from the alleged negligence of the defendant comрany.
The accident occurred at the intersection of Arch and Thirteenth streets, Philadelphia. The defendant operates a double street car line on Arch street and a single line on Thirteenth street. The cars run east on the south track on Arch street and west on the north track. The plaintiff intending to cross Arch street was standing on the curbstone at the northwest cornеr of the two streets. He saw a yellow car approaching from the west and a green car approaching from the east. Both cars stopped at the usual placе when they arrived at Thirteenth street. The plaintiff then started to cross to the southwest corner of Arch street. When he reached the westbound track he saw that the green car was standing and discharging passengers, and that the yellow car had started east. He proceeded to cross the
The plaintiff was corroborated by a witness who was on the northwest corner of the intersecting streets, and intended crossing Arch street. The witness saw the plaintiff when he was on the curbstone waiting to cross the street. She testified that at that time both cars had stopped and were discharging passengers. She said that when the plaintiff was in the space between the two tracks the yellow car started and suddenly stopped, that when it started the wеstbound car was standing on the opposite side of Thirteenth street. She also testified that the motorman of the green car was looking north toward the door of his car and did not see thе plaintiff when he was between the two tracks, and that she did not hear any bell or gong or any notice of the approach of the green car.
This is the testimony submitted by the plaintiff to sustain his сause of action. He avers that the defendant’s motorman was negligent in operating the car at a high rate of speed and in failing to give notice or warning of the approаch of the car.
The remarks made by the learned judge of the court below when he granted the nonsuit would seem to indicate that he thought the plaintiff guilty of negligence in attempting to crоss the street before both cars had passed Thirteenth street. He does not state his views as to the negligence of the motorman on the green car. In fact, the trial judge’s remarks show that he entered the
We do not agree with the learned judge that, under the testimony, he could say, as a matter of law, the plaintiff before crossing the street was required to wait until both cars had passed over the crossing. The plaintiff looked in the direction of both cars, and they had stopped and were discharging passengers, before he attempted to cross. The green car was at least forty feet east of him at the time. He continued to loоk and saw that the green car remained standing until he had crossed the westbound track and was between the two tracks awaiting the departure of the yellow car which started before thе green car had left its place on the opposite side of Thirteenth street. It is clear, therefore, that the plaintiff would have passed over both tracks before the green car could have reached the west side of Thirteenth street had it not been for the sudden stopping of the yellow car. In other words, the plaintiff, up to the time he reached the sеcond track on which the yellow car stood, had exercised the care required of him, under the circumstances, in attempting to make the crossing. It is also apparent that when he was on the curbstone he could have had no reason to anticipate any danger in crossing by being struck by the green car or crushed between it and the yellow car. Hence, the сircumstances did not require him to remain longer on the curbstone on the north side of Arch street before making the crossing. The evidence does not seem to disclose any negligencе on his part. After he arrived at the second track he was
The green car stopped to receive and discharge passengers on the east side of Thirteenth street. It remained there, according tо the evidence, until the yellow car had started and suddenly stopped and the plaintiff was attempting to pass to its rear. The green car was then on the east side of Thirteenth street аnd about forty feet from the place of the accident. The plaintiff and the yellow car were in plain view of the motorman on the green car if he had been looking in the direction in which his car was about to proceed. When the plaintiff was compelled to turn his back to the green car in order to extricate himself from the danger which confronted him, he wа's not required to anticipate that he might be run down or injured by the negligent act of the motorman in the management of the green car. The failure to anticipate negligence which rеsults in injury is not negligence and will not defeat an action for the injury sustained. A party is not bound to guard against the want of ordinary care on the part of another; he has a right to presume that оrdinary care will be used to protect him and
We think the negligence of the plaintiff and defendant was for the jury, and that the learned court below erred in granting the nonsuit.
The judgment is reversed with a procedendo.