Opinion
November 18, 1953.
January 14, 1954.
Negligence — Automobiles — Street intersection — Pedestrian boarding trolley — Contributory negligence — Jury question.
Where plaintiff stepped from the sidewalk at an intersection into the cartway to board a standing street car on a rainy night and was struck by defendant's automobile before she reached the car, it was Held, in the circumstances, that the questions of negligence and contributory negligence were for the jury.
Argued November 18, 1953. Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
Appeal, No. 185, Jan. T., 1953, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1951, No. 4218, in case of Lillian Salkin v. Lenwood James. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, by LEVINTHAL, J., of the court below, as follows:
Plaintiff here recovered a judgment for $6,000.00, after a trial without a jury, for injuries arising from an accident in which she was struck by defendant's automobile. We entered final judgment after dismissing exceptions, and now file this memorandum of our reasons under Rule 42 of the Supreme Court.
The accident occurred on January 12, 1950, at the corner of the north side of Girard Avenue and the east side of 42nd Street. It was about 11 P.M. and it was raining. Plaintiff intended to board a westbound street car on Girard Avenue. When she reached the corner she saw a street car approaching the stop. To the east on Girard Avenue she saw the lights of an automobile at about the point where 42nd Street intersects the south side of Girard Avenue, a distance of 210 feet. The traffic light overhanging the street was red for Girard Avenue. Plaintiff testified that, having said good-bye to her friend, she stepped into the cartway to board the standing street car, and that she had taken "about 15 steps" and was only "a couple of steps" from the street car when she was struck by defendant's automobile.
Defendant argued that the law and the facts did not permit the essential findings of negligence on the part of defendant and the absence of contributory negligence on the part of the plaintiff.
In our opinion, the evidence amply supports the finding of negligence. "The attendant care required of all drivers, particularly of motor vehicles, at crossings is that they be highly vigilant and that they maintain such control that on the shortest possible notice they can stop so as to avoid injury to a pedestrian." Atkinson v. Coskey, 354 Pa. 297, 303 (1946); Kane v. Scranton Transit Co., 372 Pa. 496, 499 (1952). This duty is even higher where, as here, there are the added circumstances that there is a street car stop at the intersection and that the rain caused reduced visibility and wet streets. Bert v. Walker, 146 Pa. Super. 50 (1941). The fact that plaintiff was hit with relatively great force after entering the cartway while the light was red for traffic on Girard Avenue adequately establishes a breach of defendant's high duty. The severity of the accident is incompatible with an assumption that defendant was exercising the caution commanded by the circumstances.
Defendant controverts this conclusion principally on the ground that it is factually improbable that the accident could have occurred as plaintiff describes it since the evidence indicates that plaintiff was struck by the right side of the front of the vehicle. The cartway of Girard Avenue is 24 feet wide from the north curb-line to the north rail of the west bound car tracks. Hence it is pointed out that "about 15 steps" from the curb would have taken plaintiff much too close to the street car for the right side of the automobile to have struck here. But we cannot consider this difficulty to be as material as defendant would construe it. Admittedly it was defendant's car which struck plaintiff, and it is also clear that the point of contact was well away from the curb line. Plaintiff's faulty estimate of the distance she walked reveals to us only an understandable miscalculation and does not shake our conviction that the total circumstances establish a violation of defendant's high duty of care.
We are likewise persuaded that plaintiff cannot be charged with contributory negligence under the facts or the law. It is, of course, well established that contributory negligence cannot be declared as a matter of law unless it is so clear that there can be no room for fair and reasonable disagreement as to its existence. Martin v. Gall, 370 Pa. 258, 260 (1952).
Plaintiff had a right to enter the cartway at the time she did and to proceed toward the street car. Before she did so she looked to the east and had a full right to assume that she could advance safely. She satisfied her duty of care in doing so and it was not necessary that she completely occupy her attention in looking in that direction while approaching the street car. Since she exercised due care in entering the cartway while the traffic light was in her favor, she had the right to advance even if the light had subsequently changed. See Gilles v. Leas, 282 Pa. 318 (1925); Newman v. Protective M. S. Co., 298 Pa. 509 (1930).
This case is considerably stronger in favor of the plaintiff than Cinquina v. P. T. C., 362 Pa. 546 (1949) in which it was held that a pedestrian was not guilty of contributory negligence as a matter of law when he was struck by a streetcar after he entered a crosswalk with the traffic light in his favor and proceeded "on the assumption that defendant's motorman would not start the trolley into the intersection through the red light and run him down." Id. at 551. Plaintiff here was far more justified in proceeding from the sidewalk to the standing street car on the assumption that she would not be struck down by an approaching automobile.
Defendant appealed.
Ralph B. Umsted, with him John P. Hilferty, for appellant.
Abraham J. Levinson, for appellee.
The judgment of the lower court is affirmed on the opinion of Judge LEVINTHAL which ably covers the facts and the law involved.