Knaell v. Pittsburgh, Mars & Butler Railway Co.

83 Pa. Super. 355, 1924 Pa. Super. LEXIS 143

Opinion

Opinion by

Trexler, J.,

Plaintiff driving a Ford touring car at a rate of speed of about 5 miles an hour was about to cross defendant’s interurban trolley road at a grade crossing on a public highway near the Borough of Mars. When he was within 10 feet of the crossing, the front of his car being about 4 or 5 feet from it, he saw the trolley car approaching on a down grade about 125 feet away and knowing he had not time to cross he attempted to stop his machine, but failed to avoid a collision. He states that the momentum of the automobile carried it over the' first rail. The plaintiff was thoroughly familiar with the premises. He knew that his view would be obstructed, nevertheless he kept on with his automobile until he got to a place where he could see, but a place in which he could not escape danger if it should appear. He was going into a situation of known danger without having his car under control. To look when it was impossible to check the speed of the car so as to keep from entering the tracks was useless. It was plaintiff’s duty, knowing the locality, when he came to the place where he could see to have his car so that he could arrest its progress before it reached the tracks. This is in accordance with our decisions: Miller North Broad Storage Company v. Philadelphia Rapid Transit Company, 62 Pa. Superior Ct. 568; Kane v. Philadelphia Rapid Transit Co., 67 Pa. Superior Ct. 80. We think the plaintiff was guilty of contributory negligence. The third assignment of error, the one to the refusal of the court to give binding instructions is sustained.

The judgment is reversed and judgment is now entered in favor of the defendant.