Opinion
October 10, 1932.
November 28, 1932.
Negligence — Automobiles — Pedestrian — Contributory negligence — Crossing in front of approaching vehicle — Assuming vehicle will approach car-stop at reasonable speed.
1. Where defendant in his truck was approaching the intersection of a street at a point where street cars turn from that street into another street and then immediately stop at a regular stopping point, a fact known to the driver, who testified that it was a very bad night, that he could see but 30 feet ahead of him, and that he did not see plaintiff before the accident, the question of defendant's negligence was for the jury. [295]
2. In such case, where plaintiff testified he first saw the truck 200 feet away and, when he was not quite at the center of the street, saw that it was about half a block away, and that he then thought he had sufficient time to complete the crossing if defendant approached the intersecting street and car-stop at reasonable speed, plaintiff's conduct was also for the jury. [295]
Appeals — Review — Verdict — Presentation of subject in lower court not made.
3. If review of the amount of a verdict is desired, the subject should be presented below so that, when considered in the appellate court, it may be done in the light of the trial court's opinion of the action of the jury. [295-6]
Before FRAZER, C. J., SIMPSON, KEPHART, MAXEY, DREW and LINN, JJ.
Appeal, No. 174, March T., 1932, from judgment of C. P. Allegheny Co., Jan. T., 1929, No. 1853, on verdict for plaintiff, in case of Arthur W. Robertson v. Jewel Tea Co., Inc. Affirmed.
Trespass for personal injuries. Before MOORE, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $4,252. Defendant appealed.
Errors assigned, inter alia, were refusal of binding instructions and judgment n. o. v., quoting record seriatim.
John E. McCalmont, for appellant. — Plaintiff did not discharge his duty of reasonable care by a hasty glance followed by blind assumption that he would cross in safety.
The mere fact that an automobile runs into a pedestrian raises no presumption of negligence: Rhoads v. Herbert, 298 Pa. 522.
J. Thomas Hoffman, with him Joseph A. Burns, for appellee. — Plaintiff crossed as the ordinarily prudent person would have done: Newman v. Motor Service Co., 298 Pa. 509; Wack v. Transit Co., 93 Pa. Super. 206.
The short vision of defendant did not warrant him in traveling at the speed established.
Argued October 10, 1932.
Appellant makes two complaints (1) that its motion for judgment, based on contributory negligence, and lack of defendant's negligence, should have been granted; and (2) that the verdict was excessive.
1. Plaintiff was run down by defendant's truck on a rainy November evening while crossing Market Street, the principal business street in the City of Steubenville, Ohio. The driver testified that it was a "very bad night;" he could see but 30 feet ahead of him; he did not see plaintiff, or even know what he struck until after he stopped and returned to where plaintiff and others then were. He was driving eastward, approaching the intersection of McDowell Street at a point where street cars turn from that street eastward into Market Street and then immediately stop at a regular stopping point. The driver saw the car enter Market Street and knew that it stopped there. Whether such driving was negligent, in the circumstances, was for the jury. Plaintiff said he first saw the truck 200 feet away and, when he was "not quite to the center of the street," saw that it was about "half a block [perhaps 100 feet] away," and that he then thought he had sufficient time to complete the crossing if defendant approached the intersecting street and car-stop at reasonable speed, as he thought defendant was doing. In such circumstance his conduct was also for the jury: Cronmuller v. Evening Telegraph Co., 232 Pa. 14, 81 A. 58.
2. The second point is not open here; it was withdrawn with the motion for a new trial in the court below, which counsel stated he would not press. If review of the amount of a verdict is desired, the subject should be presented below so that, when considered in this court, it may be done in the light of the trial court's opinion of the action of the jury; compare King v. Equitable Gas Co., 307 Pa. 287, 295 et seq., 161 A. 65.
Judgment affirmed.