Hicks v. Philadelphia Rapid Transit Co. , 53 Pa. Super. 174 ( 1913 )

Opinion by

Morrison, J.,

In this action of trespass, based on the alleged negligence of the defendant, the trial judge, Ralston, submitted the case to the jury, refusing the defendant’s point that "under all the evidence the verdict must be for the defendant.” The jury found for the plaintiff $359 and, on motion for judgment non obstante veredicto, the court, on argument and consideration, in an opinion by Staake, Judge, entered judgment for defendant non obstante veredicto.

We have carefully examined the testimony and the argument of appellant’s learned counsel and we fail to see any merit in this appeal. If the appellant told the truth on the witness stand, he was guilty of gross negligence in driving in, front of a trolley car which was running at such a rapid speed down Chestnut street, between Broad and Juniper streets, that it ran 125 feet while he was driving across the track with his horse going at the rate of five or six miles an hour. The appellant insisted that he saw the car when it was 125 feet from the place where he sought to cross. This would be about seven rods distant. If this was so, then the car must have been running at a very dangerous speed and having seen it, he was guilty of contributory negligence in attempting to cross in front of the car when a halt of a few seconds would have allowed it to pass. He claims that the cap had just started from ihe east side of Broad street when he first saw it, and it is unreasonable to suppose that it was running at any such speed as the plaintiff testified to and it is highly probable that the car was much nearer the point where plaintiff crossed, than he stated, when he drove in front of it. But we have his positive testimony that he saw the car approaching rapidly and that he undertook to cross in front of it, and if it be a fact that the car was much nearer to him than 125 feet when he drove in front of it, he must be considered guilty of gross negligence in that event.

The only assignment of error is that the court below erred in entering judgment for the defendant non obstante veredicto. We think the opinion of Judge Staake, which appears in the report of the case, with the authorities therein cited and many others that might be cited, fully and satisfactorily vindicates the judgment in favor of the defendant, and any further discussion on our part would not be profitable.

The appeal is dismissed at the cost of appellant, and the judgment is affirmed.