Opinion
December 6, 1934.
January 7, 1935.
Negligence — Contributory negligence — Failure to look or hear — Pedestrian — Crossing in front of trolley — Collision with side of truck.
In an action of trespass to recover damages for personal injuries sustained when plaintiff came into collision with defendant's truck, judgment for defendant n. o. v. is properly entered, where it appears that after alighting from a trolley car plaintiff walked in front of the car to cross over the street, that he stepped out beyond the side of the trolley car and came into collision with the body of the truck at a point where it was three inches wider on each side than the fore part and after eight or nine feet of the truck had passed him, that the accident happened in clear daylight and that the truck had been proceeding with sufficient noise to be heard.
Argued December 6, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 375, Jan. T., 1934, by plaintiff, from judgment and order of C. P. No. 2, Phila. Co., June T., 1933 No. 5038, in case of Norman O. Oldroyd et al. v. W. W. Kirby Son. Judgment affirmed.
Trespass for personal injuries. Before MILLAR, J.
The opinion of the Supreme Court states the facts.
Verdict for husband plaintiff in amount of $3,500. Judgment n. o. v. entered for defendant. Husband plaintiff appealed.
Error assigned was judgment n. o. v., quoting record.
Joseph G. Feldman, with him Milton S. Leidner, for appellant. William C. Ferguson, Jr., Kenneth Souser and Max E. Cohen, for appellee, were not heard.
This appeal is from the award of judgment non obstante veredicto in an action of trespass to recover damages for personal injuries to plaintiff Norman O. Oldroyd, in whose favor the jury had returned a verdict of $3,500.
The accident occurred as follows: Plaintiff alighted from the front door of a northbound, one-man, pay-as-you-leave trolley car which stopped to discharge passengers on Torresdale Avenue at Sanger Street in the City of Philadelphia. Torresdale Avenue is a double-track street. Plaintiff, who was the first of a number of persons leaving the car, walked rapidly two or three paces forward to the Sanger Street crossing, turned left in front of the trolley, and hurried toward the opposite side of Torresdale Avenue. He stepped out beyond the left side of the trolley car and had not entered upon the southbound track when he collided with defendant's truck and was thrown to the ground in front of the trolley car, sustaining the injuries for which damages are claimed. The machine was a six-wheel trailer truck, which was passing on the left of and close to the standing trolley, going at a speed of from 30 to 35 miles an hour, the right wheels running in the dummy and the left wheels in the middle of the southbound tracks.
There is no doubt as to the negligence of the truck driver. The court below, however, held the accident would not have occurred had appellant been properly vigilant; that, since the collision was with the body of the truck (which was about three inches wider on each side than the fore part, consisting of the cab and engine), 8 or 9 feet of the truck had passed appellant before he came into contact with it. It was clear daylight, and if appellant had been looking he must have seen and avoided contact with the passing machine; his failure to look was, as a matter of law, contributory negligence. In Giles v. Bennett, 298 Pa. 158, cited by appellant, there was no evidence that plaintiff walked into the side of the truck, consequently that case does not rule here. Further than this, there is uncontradicted testimony that the truck was proceeding with a "good loud noise," "an awful noise," "such a noise that anyone could have heard it," and, if plaintiff failed to see, he should have heard the approaching truck.
The judgment of the court below is affirmed.