41 A.2d 856 | Pa. | 1945
Plaintiff, Lucretia Caldwell Weldon, Administratrix of the Estate of her husband, Joseph L. Weldon, brought these actions in trespass, one under the Survival Act of *104 1937 and the other under the Wrongful Death Act of 1911, to recover damages for his death, alleged to have been caused by the negligence of defendant, Pittsburgh Railways Company. The cases were tried together; separate verdicts were returned for plaintiff; the learned court below on motion entered judgments n. o. v. for defendant, and plaintiff appealed.
Mr. Weldon, then seventy-two years of age and retired, was struck and fatally injured by a street car of defendant on September 17, 1942, at about 8:15 P. M. It was a rainy and misty evening. He was crossing Brownsville Road, in Pittsburgh, at about the middle of the block between Charles Street and Arlington Avenue. This road is a main thoroughfare, thirty-five feet in width between curbs, and has on it two street car tracks. He had reached the second rail of the far track, or the last rail in the direction in which he was proceeding, when struck.
Plaintiff called John Saftig, who was her only witness to the accident. His testimony was very hurtful to plaintiff because it established negligence on the part of decedent. Saftig testified that he was standing at the curb in front of his residence, 129 Brownsville Road; that he saw Mr. Weldon directly opposite him on the other side of the street; that he saw him start to cross; that traffic was then moving, "a street car coming up and one had passed going down"; that when Weldon reached the first rail of the track upon which the car was running "the street car was 20 feet away, probably a little more"; that Weldon did not look in any direction, his whole attention being on getting across the street. Saftig further testified: "I was watching him coming across. I was just figuring if he was going to get across". This testimony was not challenged in any way and it was all the testimony plaintiff offered showing facts of the accident. It alone barred any hope of recovery since it showed that Weldon stepped upon the street, and continued to walk across without looking in any direction *105
for traffic. That he would have seen the street car if he had looked is obvious — he could not have helped seeing what Saftig saw and described. "It is an inflexible rule that a traveler must look for approaching cars immediately before entering upon a street car track . . .; failure to do so is negligence per se. This duty is not performed by looking when first entering the street, but continues until the track is reached". Patton v. George,
In Ferencz v. Pittsburgh Railways Co.,
We are fully aware of the doctrine that a person who has lost his life is presumed to have exercised due care. (Basel v.Pittsburgh,
The presumption of due care having been overcome, plaintiff's case was barren of anything upon which a verdict and judgment in her favor could stand. The learned court below was bound to find plaintiff's decedent guilty of negligence as a matter of law, and enter judgments in favor of defendant.
Judgments affirmed; costs to be paid by appellant.