Bowen v. Buffalo & Lake Erie Traction Co. , 54 Pa. Super. 128 ( 1913 )

Opinion by

Orlady, J.,

The plaintiff was riding a motocycle on Eighth street, which intersects with Parade street, in the city of Erie and collided with a street car, so as to produce substantial injuries. The material facts are not in dispute. The plaintiff was thirty-six years old, was familiar with the streets and the location of the street car tracks in the middle of Parade street. In clear daylight he was riding his motocycle at a speed of about eight miles an hour, and when he arrived at the curb line of Parade street he was twenty-seven feet from the first car rail. At this point he looked north and saw a car approaching about fifty feet distant from where he then was. He frankly states that he knew that if he would continue in a direct line at the speed he was then going he would collide with the street car, and for that reason he turned south to run parallel with the ear tracks. He admitted that he could have stopped his machine, which was about eight feet in length, within that distance, and with the rider weighed from 225 to 250 pounds, the brake being in good condition and he was familiar with its use. His contention is that the street car was running at an excessive rate of speed, twenty or twenty-five miles an hour, and was not under the control of the motorman, for the reason that it ran about 175 feet after striking the plaintiff.

It is not necessary to consider any other fact, as the plaintiff by his own showing demonstrates his contributory negligence by his conduct. He had the right to expect a street car at that place. He knew it had a superior right to the street crossing; his machine was under proper control and he had but to use ordinary common sense to save himself from being injured. He had thirty feet within which to change his course and he took the chance of crossing the track ahead of what he knew to be a rapidly moving car. He further admitted that after his first look at the curb, thirty feet distant from the track, he did not look again at the street car, but was watching a man approaching on a bicycle from the opposite direction.

To allow such a verdict to stand would be putting a premium on inexcusable negligence on the part of the rider: Trout v. Electric Ry., 13 Pa. Superior Ct. 17; Brown v. Traction Co., 14 Pa. Superior Ct. 594; Beer v. Clarion Township, 17 Pa. Superior Ct. 537; Potter v. Ry. Co., 19 Pa. Superior Ct. 444; Gilmore v. Traction Co., 26 Pa. Superior Ct. 97; Walsh v. Transit Co., 27 Pa. Superior Ct. 89; McCartney v. Union Traction Co., 27 Pa. Superior Ct. 222; Houston Bros. v. Traction Co., 28 Pa. Superior Ct. 374. The case is fully covered by Black v. Philadelphia R. T. Co., 239 Pa. 463.

Under the plaintiff’s own testimony the verdict should have been directed for the defendant.

The judgment is reversed.