Opinion
October 9, 1929.
December 12, 1929.
Negligence — Collision — Street car — Failure to look before crossing tracks — Contributory negligence.
In an action of trespass to recover for damages to a truck sustained in a collision with the defendant's street car at a street intersection, the evidence established that when the plaintiff's truck entered the intersection the driver saw the car a block away. The truck came to a stop however before crossing the tracks, in order to avoid hitting children who were playing in the street. The driver proceeded without looking for the street car again, and the truck was struck about midway on the tracks. The plaintiff's witnesses testified that the trolley car was about thirty feet from the intersection when the plaintiff's truck started to cross the tracks.
In such case the failure of the plaintiff's driver to look immediately before entering the tracks constituted contributory negligence, and a judgment for the plaintiff will be reversed.
Automobiles — Street car — Crossings — Negligence.
The driver of an automobile intending to cross a trolley track must look for the trolley car just before entering the track, and must not proceed to cross unless the trolley car is so far distant that, considering the speed at which it is then moving, in the exercise of ordinary prudent judgment, he is justified in concluding that he can safely make the crossing.
Appeal No. 201, October T., 1929, by defendant, from judgment of M.C., Philadelphia County, September T., 1927 No. 1166, in the case of Philadelphia Dairy Products Company Inc. v. Philadelphia Rapid Transit Company.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Reversed.
Trespass to recover damages to an automobile. Before BONNIWELL, J., without a jury.
The facts are stated in the opinion of the Superior Court.
Finding for plaintiff in the sum of $1,363.20 and judgment thereon. Defendant appealed.
Error assigned, among others, was the refusal of the defendant's point for binding instructions.
Warwick Potter Scott, and with him John J.K. Caskie, for appellant.
Harold D. Saylor, for appellee.
Argued October 9, 1929.
This was a right-angle collision between a motor truck and a trolley car. As the finding of the trial judge was in favor of the plaintiff we must accept the evidence most favorable to it as true, together with all inferences reasonably to be drawn therefrom.
The real question in the case is whether from the evidence of plaintiff's witnesses the contributory negligence of its driver was so clearly established that the court below should have declared it as matter of law.
Plaintiff's truck was being driven west on Ogden Street. As the driver approached the intersection with Twelfth Street he looked to his right and saw defendant's trolley car crossing Poplar Street and coming southward. He was unable to state how far away in feet the car then was from Ogden Street. Some boys were playing in the street intersection and to avoid hitting them he slowed up, almost coming to a stop, blew his horn and "hollered" at them, thus diverting his attention from the trolley, and then proceeded to cross the trolley track without looking again, and was struck when the truck was about midway on the track. One of plaintiff's witnesses said the trolley car was about thirty feet away when he started to cross; another said it was thirty feet away when the front wheels had crossed the first rail. It is clear that had the driver looked just before he came to the track he would have seen that the trolley car was too near for a reasonably prudent person to venture to cross the track ahead of it. His failure so to look was negligence contributing to the accident, and prevents plaintiff's recovery in this action.
The case of Mellinger v. Conestoga Traction Co., 92 Pa. Super. 332, cited by plaintiff, bears no resemblance to this one. There the failure to look just before entering the track had no causal connection with the accident for the trolley car was then several hundred feet away and approaching leisurely. Had the driver looked he would nevertheless have been justified in proceeding across. The accident there was caused by the plaintiff's automobile stalling on the track and the trolley car slowly but negligently running into it, because the motorman was not looking ahead but was busy counting his money. We had no intention, in that case, of weakening the general rule that the driver of a motor vehicle intending to cross a trolley track must look for the trolley car just before entering the track, and must not proceed to cross, unless the trolley car is so far distant that considering the speed at which it is then moving, in the exercise of ordinary, prudent judgment, he is justified in concluding that he can safely make the crossing: Burke v. Union Traction Co., 198 Pa. 497; Bane v. Pittsburgh Rys. Co., 243 Pa. 427; George v. Phila. R.T. Co., 285 Pa. 362; Kalter v. Phila. R.T. Co., 95 Pa. Super. 116; Thornton Fuller Co. v. Phila. R.T. Co., 95 Pa. Super. 286.
The first and third assignments of error are sustained. The judgment is reversed and is here entered for the defendant.