Opinion
December 4, 1946.
January 9, 1947.
Negligence — Automobiles — Contributory neligence — Intersections — Pedestrians — Sudden emergency — Restatements, Torts.
1. The fact that the plaintiff is acting in an emergency not created by his own antecedent negligence is a factor to be taken into account in determining whether his conduct is free from contributory negligence. [491-2]
2. Restatement, Torts, section 470, cited. [492]
3. Contributory negligence can only be declared judicially where it is so clear that there is no room for fair and reasonable persons to disagree. [492]
Practice — Judgment n. o. v. — Evidence — Inferences.
4. On a motion for Judgment n. o. v., the court is required to accept as true all facts and all inferences reasonably deducible therefrom which support the verdict. [489]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeals, Nos. 134 and 173, Jan. T., 1946, from judgments of C. P. No. 6, Phila. Co., December T., 1944, No. 1128, in case of Fannie Bauer, Admrx., Estate of Adolph Bauer, deceased, v. George Sacks. Judgments affirmed.
Trespass for wrongful death.
The facts are stated in the opinion, by ALESSANDRONI, J., of the court below as follows:
This is an action in trespass for the wrongful death of Adolph Bauer. The jury returned a verdict in favor of the plaintiff, Fannie Bauer, widow of the decedent, in the sum of $10,000.00 and in her favor as administratrix of his estate, in the sum of $5,000.00. A single question has been raised by the defendant, namely: that the decedent was guilty of contributory negligence as a matter of law.
In Zurcher v. Pittsburgh Rwys. Co., 353 Pa. 212, the court said at page 213: "In the legal situation which necessarily obtains under procedural circumstances such as are here present, we are required to accept as true all facts and all inferences reasonably deducible therefrom which are favorable to the verdict, having resolved to the same end any conflicts of material fact raised by the evidence of the party opposed to the verdict."
No question is raised with respect to the defendant's negligence or its causal relation to the resulting death, and the verdict of the jury has settled all issues of fact. Unless contributory negligence can be declared as a matter of law, judgment must be entered upon the verdict: Altsman v. Kelly, 336 Pa. 481.
Viewing the evidence in this manner and being mindful of the presumption that the decedent at the time of the accident was exercising due and proper care for his own safety, the following pertinent facts appear: The accident occurred on December 3, 1944, about 8 P. M., at the intersection of 5th and Hunting Park Avenue, Philadelphia. Fifth Street is 50 feet wide from curb to curb, and in the bed of the cartway contains a double set of trolley tracks running north and south. Hunting Park Avenue, which runs east and west and intersects 5th Street at right angles, is 60 feet wide from curb to curb. There are traffic lights on the southeast and northwest corners and electric lights on the northeast and southwest corners.
The decedent alighted from a northbound trolley on 5th Street and proceeded to the east curb in the company of other passengers to the southeast corner. The trolley car then proceeded northward on 5th Street and the decedent left his position at the curbline and proceeded westward across 5th Street, walking in a straight line in the crosswalk about 10 feet south of the south curbline of Hunting Park Avenue. When he had proceeded the distance of approximately 25 feet and was in the dummy space between the northbound and southbound car tracks, he looked to the north before entering the cartway of 5th Street allocated to southbound traffic. At this time defendant was proceeding southward on 5th Street approaching the intersection of Hunting Park Avenue, straddling the westernmost rail of the double car tracks and bearing down about the decedent at a speed of 40 miles per hour. The bright headlights of the defendant's car were plainly visible. The decedent changed his pace to a trot and had traversed more than one-half of the remaining 25 feet of the 5th Street cartway, when he was struck and hurled more than 40 feet through the air landing in the gutter on the west side of 5th Street about 50 feet below its intersection with Hunting Park Avenue. The badly battered condition of the decedent's body which came to rest in front of the defendant's automobile, was indicative of the excessive speed with which the defendant proceeded across the intersection. The skid marks of his car, which were 51 feet in length, indicate that the defendant turned sharply to the right or westward direction, which was the same direction in which the defendant was moving in order to avoid being hit. These skid marks start at a point about 7 feet north of the south curbline of Hunting Park Avenue at a distance of approximately 9 feet from the west curbline of 5th Street, and run in a southwestwardly direction until the car finally stopped approximately 50 feet below the intersection and two feet from the west curbline.
There was no evidence offered on behalf of the defendant. It appears that he was traveling at an excessive speed possibly to make the light which changed from green in favor of 5th Street traffic as his automobile was crossing the bed of Hunting Park Avenue.
The defendant contends that the presumption of due care must fall before the proven fact that the decedent was negligent as a matter of law. It is the defendant's theory that the decedent left his place of safety in the middle of 5th Street and ran directly into the path of the on-coming motor vehicle. It appears that the decedent did not leave his position in order to gamble with a visible danger. When he observed the headlights of the defendant's car bearing down at its excessive speed, they were almost in a line with the position he then occupied, and it is reasonable to assume that he broke out into a trot in order to extricate himself from what appeared to be a position of peril. From the evidence it would appear that had the decedent stopped, and had the defendant proceeded on a straight line, he would have passed within a few feet of the decedent. On the other hand, if the defendant had not swerved his car so sharply to the right, the decedent, by increasing his speed in traversing the crosswalk, would have easily cleared the path of the on-coming vehicle.
A pedestrian has a right of way at intersections and his presence there is to be anticipated by operators of of motor vehicles, even when that intersection is not in a populous district such as in this case: Newman v. Protective M. S. Co., 298 Pa. 509. In attempting to run across the remaining distance instead of standing still or stepping backward, the decedent might have made an unwise decision, but under the decisions of our appellate courts, the decedent was not required to choose what might have been a safer course, nor to exercise the best judgment as to whether he should advance, retreat or stand still in an emergency which was created by the conduct of the defendant which might be considered to exceed ordinary negligence: Restatement Torts, Section 470; Mulheirn v. Brown, 322 Pa. 171. Under the circumstances, the decedent was justified in believing that the longer he remained in the roadway, the greater the peril.
Clearly this was a case for the jury: Maselli v. Stevens, 331 Pa. 491. It cannot be held as a matter of law that the decedent was contributorily negligent. He looked when he was in the middle of the cartway and before he committed himself to the lane of southbound traffic. The decisions relied upon by the defendant, namely: Lieberman v. Pittsburgh Rwys. Co., 305 Pa. 412; Weldon v. Pittsburgh Rwys. Co., 352 Pa. 103; Porreca v. North Cleaners Dyers, Inc., 146 Pa. Superior 504, are clearly distinguishable, for in each of those cases the plaintiff failed to look and govern himself accordingly. This is not a case where a pedestrian stepped directly into the path of a moving car. Whether the decedent exercised care in his effort to avoid the collision was peculiarly a question of fact for the jury to determine and depended upon the care he did exercise under the circumstances. Under the perilous and varying conditions here shown, only a jury may competently apply the required standards of care as determined by it, on the basis of the conduct expected of a reasonably prudent person in circumstances such as these. Contributory negligence can only be declared judicially where it is so clear that there is no room for fair and reasonable persons to disagree: Van Note v. P. T. C., 353 Pa. 277; Cox v. Scarazzo, 353 Pa. 15.
We are therefore of the opinion that the defendant's motion for judgment n. o. v. must be overruled and judgment entered upon the verdict.
Defendant appealed.
Raymond A. White, Jr., for appellant.
Geoffrey J. Cunniff with him Henry D. O'Connor and Shoyer, Rosenberger, Highley Burns, for appellee.
Argued December 4, 1946.
Judgments affirmed on the opinion of Judge ALESSANDRONI; costs to be paid by appellant.