Opinion
September 29, 1944.
October 31, 1944,
Negligence — Automobiles — Intersections — Contributory negligence — Evidence — Incontrovertible physical facts.
In an action by the driver of a bus for injuries resulting from a collision between the bus and defendant's street car at a highway intersection, it was Held that the evidence did not establish as a matter of law that plaintiff was contributorily negligent.
Argued September 29, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.
Appeal, No. 231, March T., 1944, from judgment of C. P., Allegheny Co., July T., 1943, No. 2877, in case of Francis Manning v. Pittsburgh Railways Company. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, by MARSHALL, J., of the court below, as follows:
On the evening of June 14, 1943, a Greyhound bus was proceeding along Baum Boulevard in a westwardly direction toward the City of Pittsburgh.
A street car was proceeding northwardly on Negley Avenue, which intersects Baum Boulevard. The bus had attempted to cross Negley Avenue on a flickering yellow light. The street car was attempting to cross Baum Boulevard with a flickering red light.
The machine and the street car collided and many people were hurt.
The driver for the Greyhound Bus Company brought an action against the Pittsburgh Railways Company which, in turn, by writ of scire facias brought in as additional defendant the Pennsylvania Greyhound Lines, Inc.
There was a verdict for the plaintiff in the sum of $10,000.00. The defendant has made a motion for a new trial and for judgment non obstante veredicto.
In the opinion of the Trial Judge there is no question but what the driver of the street car was guilty of negligence. The serious question before us is — was the driver of the bus also guilty of negligence?
The defendant takes the position that the physical facts are so clear that they demonstrate the negligence of the bus driver.
A summary of the evidence offered by the plaintiff is as follows:
"Q. How fast and in what gear were you riding as you came down Baum before you got down to the vicinity of Negley Avenue? A. I was in third gear. Q. Up until the time that you got into the vicinity of Negley Avenue, how fast were you riding? A. About 30 miles an hour. Q. What traffic light was indicated in the direction you were coming, to the Baum Boulevard traffic? A. Yellow, yellow flashing signal. Q. What was the traffic signal to Negley? A. It was a red flashing signal. Q. Then as you came down toward Negley avenue, what did you do as you approached? A. I reduced the bus down into second gear. Q. How far were you from the intersection as you reduced the bus into second gear? A. About 50 feet back from the rail. Q. After you reduced it down into second gear, how fast would you be traveling? A. Around 15 miles an hour. Q. In your own way, proceed and tell us from there on what happened. A. I proceeded up to the corner, to the crossing, to the rails, about 20 feet back. I looked to the left and saw a street car and it was up near that bend on Negley avenue. Q. The bend to your right or left? A. To my left. Q. Where were you at the time? A. About 20 feet from the first rail. Q. That is the first rail on Negley avenue? A. Yes. Q. What part of your bus was 20 feet from the rail at that time? A. The front end. Q. When the front end of your bus was about 20 feet from the rail, where did you see the street car then? A. Right near the bend on Negley avenue.
* * *
Q. That is toward the rail? A. Yes. And when I was almost on the first rail I looked to the left again and the street car was about ten feet back from the curb. Q. What curb? A. From the curb on Negley, at the left. Q. So when you were about at the rail, do you mean the street car was still back at the Baum Boulevard curbline? A. Yes. Q. How far back? A. About ten feet. Q. Did you then notice anything about the speed of the street car? A. No, I didn't.
* * *
Q. Leave out the "fast rate of speed" for a moment. The street car came running on and what happened? A. Ran into the left-hand corner of the bus, about three feet back. Q. Where was the front of the bus when the street car struck it? A. About two or three feet on the first rail."
Sections of Mr. Thomas J. Rounsley's testimony:
"Q. Where were you sitting? A. At the emergency door on the left side of the bus. Q. Tell us what you saw about the accident. A. As we approached the intersection I seen the street car making the last right-hand loop onto the stretch from the boulevard out Negley. We were, at the particular time, I would say, approximately a distance, between the intersection and the street car as we approached the intersection, of 100 feet. The street car was traveling at a fast rate of speed. Q. How far is that from Baum Boulevard, if you know? A. I can't say that without means of measuring it. Approximately, the distance I seen that car, the distance was 100 feet. Q. When you saw it coming here, it was 100 feet before it reached Baum Boulevard? A. Yes. Q. How far back from this carline were you at the time on Baum Boulevard? A. I would say between 25 feet — here is that blinker light here and the front of the bus — here is your white line here and the front of the bus was in the intersection and the street car was coming toward it. Q. You were 25 to 50 feet back from the car track. Where was your bus when you saw the street car first coming around — A. Coming down through here (indicating). Q. That is the time you saw the street car coming around the bend? A. Yes. Q. You say this is about 100 feet away? A. I would say from the distance I seen the street car approaching the intersection and the bus. Q. You have given us the distance of 100 feet away the street car was. You mean your bus was 25 feet back from the rail? A. That is exactly it. I had a clear view from this point to this point from the building. Q. Did you watch the street car as it came up from that time until the collision? A. I did. Q. Did it make any stop at all? A. It did not. Q. Where was the bus when the street car struck it? A. Directly over that car line, and the blinker was a little above the one part of the bus, and it pinned the bus up against the blinker light which drew the rear end of the bus around, particularly the rear end of the bus more so out on the other side of the light. Q. How far across Negley had the bus gone, where was the front end of the bus when the collision occurred? A. I would say the bus was exactly four feet out into the intersection when the street car collided with the bus."
Mr. Carl Richard Knight's testimony, in part:
"A. I was following the bus approximately 40 or 50 feet coming west on Baum Boulevard. Q. That is, you mean you were inbound on Baum Boulevard about 40 feet behind the bus? A. That is right. Q. What light was flashing to Baum Boulevard traffic? A. Yellow. Q. What light was flashing to Negley avenue traffic? A. Red. Q. When you came out near Baum and Negley, did you see the street car before it entered the intersection? A. I saw it just as it came up. There is an iron pole there right at the corner of Baum and Negley. That is the first time I saw the street car. Q. Where was the street car with respect to this iron pole you mentioned? A. Well, it was about ten feet on Negley in back of the iron pole. Q. Then how far was the front of the street car from the Baum Boulevard curb when you first saw it? A. 25, 30 or 35 feet. Q. And at that time when you saw the street car there, where was the bus with respect to the rail? A. I would say, as close as I could judge — I can't say exactly because the bus being so long and me being so close I couldn't exactly say but it was approximately three feet from the northbound rail, that is the rail facing Baum Boulevard or the closest one to Baum Boulevard. Q. The front of the bus, as nearly as you can tell, was three feet from that when the street car was 25 feet from the curb? A. Yes. Q. What happened after that? A. The bus kept on going. I would say it was going between 15 and 20 miles an hour. And the street car had made no effort to stop. It just came right through and it was the right front of the street car that hit the left front of the bus. Q. Where was the front of the bus when the accident occurred? A. I would say it was just about in the middle of the street car track."
As we have said, the defendant takes the position that the testimony of the plaintiff is so incredible and contrary to the admitted physical facts that we should either grant a new trial or give judgment in favor of the defendant, Pittsburgh Railways Company. And in support of this, the defendant cites the case of Lessig v. Reading Transit Light Co., 270 Pa. 299.
We do not believe this case is controlling because we not only have the testimony of the three witnesses whose testimony we have summarized, but there is the testimony of eight or ten street car passengers who all testified that the street car did not stop at the stop sign before coming to Baum Boulevard and it is met only by the testimony of the motorman and three young women who were on the street car, whose testimony the jury might have disbelieved as it was seriously attacked.
If we accept the testimony of the plaintiff's witnesses, the bus was first at the intersection with a yellow flickering light, while the street car was proceeding on a flickering red light on a very much-used public boulevard.
The plaintiff's witnesses have the street car sufficiently far away when the bus started to cross that the operator of the bus would have been justified in crossing.
The jury chose to accept the plaintiff's testimony and we do not see how we could be justified in interfering with the verdict.
In support of this opinion, we cite the case of Schaeffer v. Reading Transit Co., 302 Pa. 220, and we quote the 4th and 5th paragraphs of the syllabus: "4. In an action by a driver of a truck against a street railway for injuries sustained at a crossing by a collision between the truck and a trolley car, the question of plaintiff's contributory negligence is for the jury, where the evidence shows that plaintiff was at the crossing first, that the trolley car was 250 feet away, and that he believed he had time to cross. 5. The position of a moving object, such as a trolley car which causes an injury, cannot be called an 'incontrovertible physical fact' where the evidence shows the position of the object to be elsewhere at the time of the accident."
D. H. McConnell, with him J. R. McNary, for appellant.
H. E. McCamey, with him Dickie, Robinson McCamey, for appellee.
The judgment is affirmed on the opinion of Judge MARSHALL of the Court below.