Brody v. Pittsburgh Railways Co.

96 Pa. Super. 265, 1929 Pa. Super. LEXIS 143

• Court: Superior Court of Pennsylvania
• Decided: April 29, 1929
• Docket: Appeal 148
• Status: Published

Opinion

Opinion by

Linn, J.,

Plaintiff’s automobile was struck by a street car. He got a verdict for $2,500. On defendant’s motion the court entered judgment n. o. v. on the ground of plaintiff’s contributory negligence; he appeals.

The accident occurred during daylight September 10, 1926, while plaintiff, with two workmen in his car, was traveling eastward on South Avenue in Wilkinsburg and the street car was moving northward on Trenton Avenue.

Plaintiff was driving in low gear, 5 miles an hour, on a street full of holes requiring him to go in low gear. He says his car was about 20 feet long. "When he reached a point at or about the western line of Trenton Avenue where he first had a view to the southward, he saw a standing street car — perhaps 250 feet away discharging passengers. He drove into Trenton Avenue intending to cross. That avenue was 50 feet wide — 30 feet between curbs and had two street car tracks on it, the nearer one for southbound, and the farther, for northbound cars. "When he reached the first rail of the first track he looked again and saw the street car on the second track, approaching down grade at from 75 to 100 feet away. He states, therefore, that he looked twice, first at the house line, second while at the first rail of the first track. He did not look before entering on the second track. That was a fatal omission. Asked: “Q. What did you do when you saw the car 75 or 100 feet away from you?

A. I tried to get over the second track, of course.

Q. Did you look any time after that?

A. After I looked the second time and saw the car coming, I started to try to change gears- to get over the second track, but didn’t get time.”

He repeated that statement: “Q. When you were crossing the first street car track that you came to, it [the street car] was how far away?

A. About 75 feet, probably about 100 .......

Q. And that was the last you saw of the street car until it struck your automobile?

A. Yes.”

"When struck, he had reached a place where the front of his car was over the second track and the rear of it had not yet moved on it, the street car rails being 5 feet 2 inches apart.

The record discloses a plain case of plaintiff’s seeing the approaching ear and misjudging his opportunity to cross, due no doubt to the fact that he did not look again for the car, as the law required, just before putting his automobile on the second track on which he had seen the street car was approaching. “It is the duty of an operator, when driving a car oven a double line of tracks, to look for the approach of ears at the entrance of each track before attempting to cross it”: Kilpatrick v. P. R. T. Co., 290 Pa. 289, 293. Taking the oral evidence most favorably for plaintiff, it is clear that, before putting his car on the second or northbound track, plaintiff made no observation to see how close to him the car then was which, a short time before, he had seen approaching down grade toward him only 75 to 100 feet away.

Judgment affirmed.