Opinion
September 29, 1943.
November 10, 1943.
Negligence — Contributory — Unnecessary exposure to danger — Evidence.
1. A person who unnecessarily places himself in a position of danger and thus contributes to the accident which causes his injury is guilty of contributory negligence and cannot recover from the defendant.
2. In an action for injuries, in which it appeared the plaintiff was about to attach a tow chain to the front axle of a disabled car which was parked along the curb of a street; that he knelt on his knee, with his leg unnecessarily extending out beyond the car, into a line of traffic; and that, while in this position, his heel was struck by defendant's bus; it was Held that the evidence established as a matter of law that plaintiff was contributorily negligent.
Before KELLER, P.J., BALDRIGE, STADTFELD, RHODES, HIRT and KENWORTHEY, JJ. (RENO, J., absent).
Appeal, No. 30, Oct. T., 1943, from judgment of C.P. No. 2, Phila. Co., March T., 1942, No. 2257, in case of George Tait v. Philadelphia Transportation Company. Judgment reversed.
Trespass for personal injuries. Before FLOOD, J.
Verdict and judgment for plaintiff in sum of $500. Defendant appealed.
Marshall A. Coyne, with him Bernard J. O'Connell, for appellant.
Joseph G. Feldman, with him Edward M. Goldsborough, for appellee.
Argued September 29, 1943.
Shortly after noon on a clear day plaintiff parked his automobile directly in front of an automobile belonging to one Robert Donaldson, close to the east curb of North 16th Street, Philadelphia — both cars facing north — with the intention — acting as a volunteer — of towing Donaldson's car which was stranded there. The roadway was twenty-six feet wide between curbs, and at the point the cars were parked traffic moved in both directions, north and south. He took a tow chain from his car and started to hook it to the left (west) side of the front axle of the disabled car, intending thereafter to fasten it to the rear axle of his own car. He had a space of seven feet by five and one-half feet (the width of the cars) to do it in.
He testified that he knelt down on his right knee, with his head under the Donaldson car and his left leg extending out beyond the car, into the line of northbound traffic. While in this position for two or three minutes, his left heel was struck by one of defendant's busses, traveling northward on 16th Street. The impact knocked off his shoe and rolled him over on his stomach, causing him injury for which he sought a recovery in this action.
Plaintiff gave no reason why he put his leg and foot out into the line of northbound traffic. He was five feet, seven inches tall and there was ample room for him to extend his leg in the seven foot space between the two automobiles. If he unnecessarily placed his body in a position of danger and thus contributed to the accident which caused the injury, he was guilty of contributory negligence and cannot recover from the defendant: O'Malley v. Quaker City Cabs, Inc., 107 Pa. Super. 380, 163 A. 339, allocatur refused by Supreme Court, 107 Pa. Super. xxv; Weiner v. Phila. R.T. Co., 310 Pa. 415, 165 A. 252.
The appellant has not raised in this appeal the question of the negligence of the driver of the bus in failing to notice plaintiff's foot protruding out into the street beyond the Donaldson car. It relies solely on the plaintiff's contributory negligence. We are satisfied that the plaintiff's act contributed to the injury, and that in the circumstances here present, it was negligence for him to put his foot out into the street where it was liable to be hit by vehicles moving northward.
These facts distinguish this case from those chiefly relied on by the appellee and the court below.
In Reisinger v. McConnell, 265 Pa. 565, 109 A. 280, the plaintiff was back of his parked car — out of the direct line of traffic — helping to put a tire in the tire holder at the rear, when defendant's car, coming from behind and negligently driven collided with plaintiff's car and caught him between the two machines.
In Roberts, Admx. v. Freihofer Baking Co., 283 Pa. 573, 129 A. 574, the plaintiff's decedent was employed as a mechanic to repair a disabled autobus by replacing a broken rear axle with a new one. In order to do the work he was obliged to place himself on the right hand side of the car, where he was hit by defendant's truck traveling at an excessive speed, and killed. The place was well lighted by nearby electric lights, in addition to three red lights at the rear of the bus, where Roberts was at work. The bus was visible to approaching traffic for 500 feet; and the red lights and Roberts were also in plain sight of defendant's truck driver long enough to enable him to avoid the accident.
The assignments of error are sustained and judgment is now entered for the defendant non obstante veredicto.