Emmelt v. P.R.T. Co. , 89 Pa. Super. 417 ( 1926 )

Argued October 13, 1926. The verdict must be accepted as establishing the facts and reasonable inferences deducible therefrom developed in support of the action, as the appellant asked for judgment in its favor non obstante veredicto. The street car was moving eastwardly on Vine Street while the plaintiff was driving northwardly on 53rd Street. He had a right to cross the street in the exercise of the due care required in the circumstances. No rule of law prohibited the plaintiff from crossing the track merely because a trolley car was in sight coming toward the intersection of the two streets. The plaintiff can only be charged with contributory negligence when it clearly appears that the proximity of the car was so close that a person of ordinary prudence would not have attempted to cross the street car track until the car had stopped or had made the crossing. When the plaintiff passed the south line of Vine Street the trolley car was about two hundred and fifty feet west of the curb line of 53rd Street; the driver of the truck saw the car, sounded his horn and continued to observe the car's movement; when he was about to enter the track the car was about one hundred and twenty-five feet away; when he entered the track it was from seventy-five to ninety feet from the curb line. The truck was twenty-five or twenty-six feet in length and all of it except about seven feet of the rear had cleared the crossing when the collision took place. The rapid speed of the car was not slackened from the time the plaintiff saw it until the truck was struck. The truck was within the view of the motorman and it was his duty to exercise care. The plaintiff was not bound to anticipate the negligent management of the car, his responsibility being to avoid injury by cars operated in a proper way: Dunn v. Philadelphia Rapid Transit Co., 244 Pa. 176; McLoughlin v. Philadelphia Rapid Transit Co., 65 Pa. Super. 284; Welsh v. Philadelphia Rapid Transit Co., 63 Pa. Super. 142. The application of the rule stated depends on the facts of the particular case and it is a question for the jury whether the plaintiff should have refrained from attempting the crossing because of the imminent risk, unless his default clearly appears. The jury might well have concluded from the evidence that there was ample time for the plaintiff to have cleared the track if reasonable care had been exercised by the motorman in approaching the crossing. A consideration of all the evidence satisfies us that the case was properly submitted to the jury.

The judgment is affirmed.