MacKin v. Patterson, Appellant

112 A. 738, 270 Pa. 107, 1921 Pa. LEXIS 333

• Court: Supreme Court of Pennsylvania
• Decided: March 14, 1921
• Docket: Appeal, 48
• Status: Published

Opinion

Opinion by

Mr. Justice Walling,

This suit grows out of a crossing accident. Master Street, Philadelphia, extends east and west from Broad Street, crossing it at right angles. In the center of the latter, and in line with the south walk of the former, is a raised mound called a “safety-zone”; between it and the east curb of Broad Street is a paved cartway, for northbound traffic, of the width of twenty-six feet. On April 30, 1919, plaintiff, a woman sixty years of age, walked west on the south side of Master Street until she reached the east curb on Broad Street, where she looked south and saw three automobiles approaching at a distance of over two hundred feet. Thinking she had ample time to reach the safety zone, she started rapidly forward, looking ahead and to the north; then again to the south, where she saw defendant’s Packard ear right upon her, and by which she was struck and seriously injured. The evidence was conflicting; that for plaintiff tended to show the car came to the crossing at a speed of twelve to fifteen miles an hour and not under proper control; while the evidence for defendant was that the car was not going more than four or five miles an hour, and was under perfect control, also that plaintiff was hurt by suddenly turning back after she had nearly reached the safety zone. The trial judge instructed the jury to find for defendant if they believed his version of the facts. The jury, however, found for the plaintiff and this appeal by defendant is from judgment entered thereon.

The verdict implies that the jury accepted the evidence favorable to plaintiff, and on appeal we cannot do otherwise. Hence, the question of the negligence of defendant’s chauffeur was for the jury. In the language of the present Chief Justice Moscilziskee in Vergilio v. Walker, 254 Pa. 241, 245: “Vehicles have the right of way on the portion of the highway set aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest possible notice, they cap stop their cars so as to prevent danger to pedestrians”; see also Anderson v. Wood, 264 Pa. 98; McClung v. Penna. T. Cab Co., 252 Pa. 478. According to plaintiff’s witness, Manning, tbe chauffeur could not control defendant’s car and struck the woman while it was going from twelve to fifteen miles an hour; that evidence was for the jury, although strongly contradicted. The fact that the chauffeur did not see plaintiff until within eight feet, also tends to show lack of watchfulness on his part, for the day was bright and she was in plain sight from the time of leaving the curb.

How far the accident happened from the east curb is not definitely shown, but approximately twenty feet; whether plaintiff should have looked again to the south, while walking that distance, depended upon the surroundings, and was for the jury: Anderson v. Wood, supra; Lamont v. Adams Express Co., 264 Pa. 17; Healy v. Shedaker, 264 Pa. 512. A pedestrian must exercise continued vigilance while crossing a street (Lorah v. Rinehart, 243 Pa. 231) ; but just where he should look depends upon shifting conditions and is a question of fact rather than of law.

The evidence of Manning and also of plaintiff tended to show the car struck her before she had cleared its path; while other evidence was to the effect that she walked back in front of or against it; hence, that was also a question for the jury. The presumption is plaintiff used due care and the contrary is not shown as a matter of law.. She was not bound to anticipate that defendant would be negligent: Wagner v. Phila. Rapid T. Co., 252 Pa. 354; Baker v. Fehr, 97 Pa. 70.

Defendant’s attempted cross-examination of Dr. Chandler, a medical expert, as to the weight he would give the evidence of another doctor, who had treated plaintiff after the accident, was properly excluded. As counsel persisted in that line of cross-examination, the trial judge did not commit reversible error in characterizing it as irrelevant and highly improper. Moreover, no request was made for the withdrawal of a juror because of that remark; hence, the objection thereto was waived: Boggs v. Jewell Tea Co., 266 Pa. 428, 484; Benson v. Electric Ry. Co., 228 Pa. 290.

The assignments of error are overruled and the judgment is affirmed.