Opinion
April 23, 1936.
April 27, 1936.
Negligence — Pedestrians — Street railways — Crossing — Private right of way — Clear view — Due care — Position of safety.
1. A person crossing the tracks of a street railway company in its private right of way must exercise care while crossing and until he has reached a position of safety.
2. Where a pedestrian crossing the tracks has a clear view, he is bound to see an approaching car.
3. In an action for injuries, the evidence was on appeal held sufficient to establish as a matter of law that plaintiff was contributorily negligent, where it appeared that plaintiff alighted from a street car and started across the private right of way of defendant; that there was a clear view in either direction for at least two hundred to three hundred feet; that after crossing the last rail she stood there for two or three seconds, heard a noise, turned and saw the car, did not know how far away it was, took no step, although a single step would have carried her to a position of safety, and was struck by the overhang of a moving car.
Appeal, No. 85, April T., 1936, by plaintiff, from judgment of County Court, Allegheny Co., 1934, No. 363, in case of Sarah A. Richards v. Pittsburgh Railways Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Trespass.
Verdict for plaintiff in sum of $1,284.75. Judgment entered for defendant n.o.v.
The facts are stated in the opinion, by SOFFEL, J., of the lower court, SOFFEL, LENCHER and McDONALD, JJ., as follows:
This case is before the court on motions ex parte defendant for a new trial and for judgment non obstante veredicto.
Sarah A. Richards, plaintiff, brought an action of trespass against the Pittsburgh Railways Company, defendant. On January 18, 1934, between five-thirty and six o'clock in the evening the plaintiff alighted from a southbound car of the defendant company at Paris Stop, Overbrook, which is a suburban region of Pittsburgh. At Paris Stop the defendant company maintains a private right of way. There is a crossing which extends over double tracks from which a path leads down to a roadway known as Library Road. The plaintiff is seventy-nine years old. She testified that she had come from Pittsburgh to Paris Stop on a Castle Shannon car. She got off the car at Paris Stop, and after the car had proceeded on its way, she started across the tracks. She stated that she stopped, looked and listened and saw and heard nothing except the car from which she had just alighted. After she had crossed the last rail and was about to start down to the road she heard something behind her, turned and saw a street car, and in two or three seconds was hit by a northbound car. She further stated that as she was crossing she looked but saw nothing coming. She did not know how far away the street car was when she turned around and saw it. The plaintiff was struck by the overhang of a street car going toward Pittsburgh. Although she saw the street car coming when she turned around, she took no step away from the last rail.
At the conclusion of plaintiff's case counsel for the defendant moved for a compulsory nonsuit for the reasons that there was no evidence of negligence on the part of the defendant company which was the proximate cause of the accident and that the plaintiff was guilty of contributory negligence. The Court refused the motion. The case went to the jury and a verdict was returned in favor of the plaintiff in the sum of $1,284.75.
The defendant now presses the motion for judgment non obstante veredicto, citing as error failure of the trial judge to grant the motion for compulsory nonsuit.
"In determining whether or not these complaints are well founded, we must give to the plaintiff the benefit of every fact and reasonable inference of fact, favoring his contention, which the jury might properly have found from the evidence; and must reject every alleged fact and inference of fact, unfavorable to him, if depending solely on testimony: Vendig v. Union League of Phila., 291 Pa. 536; Frank v. Reading Co., 297 Pa. 233"; Jamison v. Kamerer, 313 Pa. 1; Jackson et al. v. Curry, 117 Pa. Super. 63; Magri v. McCurdy, 117 Pa. Super. 32.
Applying said principle to the testimony in the instant case we conclude that the plaintiff was guilty of contributory negligence and therefore judgment should be entered for the defendant non obstante veredicto. The plaintiff testified that she had entirely crossed the tracks; that after crossing the last rail she stood there for two or three seconds, heard a noise, turned and saw the car, did not know how far away it was, and took no step. A single step would have carried her to a position of safety. There was a duty on the plaintiff to exercise care while crossing and until she had reached a position of safety. Krenn v. Railways Co., 259 Pa. 443; Provost v. Director General of Railroads, 265 Pa. 589; Gasser v. Railway Co., 266 Pa. 493.
There is testimony that at Paris Stop there is a clear view in either direction for at least two hundred to three hundred feet. The plaintiff stated that while crossing the tracks she saw nothing coming. We are convinced that if she had looked she would have seen the approaching car in time to step to safety. Where a clear view is had a pedestrian crossing the tracks is bound to see an approaching car. Lynn v. P. L.E.R.R. Co., 267 Pa. 41; Weisenberg v. Railroad Co., 237 Pa. 33; Goller v. B. O.R.R. Co., 229 Pa. 412.
Plaintiff appealed.
Error assigned was judgment n.o.v.
Ben Paul Jubelirer, for appellant.
Walter M. Lindsay, with him J.R. McNary, for appellee.
Argued April 23, 1936.
The judgment is affirmed on the opinion of Judge SOFFEL of the court below.