Opinion by
Mb. Justice Musmanno,
Charles Rice, the plaintiff in this case, was injured when his automobile was struck by a street car of the defendant Philadelphia Transportation Company. The jury returned a verdict of $20,000, and the defendant company moved for judgment n.o.v., charging contributory negligence. It also moved in the alternative for a new trial on the ground of excessive verdict. The lower court refused both motions and the defendant appealed.
Reading the record through the eyes of the jury, which resolved all contradictions, doubts, and ambiguities in favor of the plaintiff, the following narrative of fact is authorized. On September 8, 1955, Charles Rice got into his automobile which was parked on the east side of Third Street in Philadelphia and moved out into that thoroughfare, intending to travel in a northward direction. Before leaving the curb he looked in both directions and noted a street car in a stationary position about 150 feet distant, south of Pine Street which intersects Third Street. This one-way highway accommodates three lanes of travel, the middle one occupied by a car track. Heavy automobile traffic was moving north on the west side of the street and many automobiles were parked on the east side. The lane open for Rice was the street car track. The approach from his parked position to the street ear lane was one which required Rice to make a wide turn. As he reached the first rail of the car track, he indicated with his hand that he was making a right turn, having already displayed his mechanical signal to the same effect. At this point the street car was still stopped [457] below Pine Street taking on and discharging passengers. Thus reassured that he was in no danger from the street car, he moved ahead cautiously — at about one mile per hour.
When his left front wheel reached the outer (or western rail), the street car started forward with an immediate acceleration to 25 miles per hour and continued at that speed with no deceleration at any time. Rice saw himself trapped. He could not go forward because of the heavy auto traffic in the western lane and he could not back up into his former parking space because of the congestion behind him. He stopped dead, hoping and assuming that the motorman would see his plight and allow him time to extricate himself. The street car, however, relentlessly advanced and crashed into the left front of his automobile. When Rice expostulated to the motorman, the latter replied: “I am sorry, fellow, when I saw you it was too late.”
It is argued by the defendant company on this appeal that the plaintiff was guilty of contributory negligence in that he voluntarily placed himself in a position of danger. The danger in which the plaintiff placed himself was one every motorist faces when he takes his automobile into street car tracks, but it is a danger of no consequence if motormen observe, as they are required to do, the traffic ahead and have their cars under control. While street cars have a superior right to the use of their tracks, that right is not an exclusive one. They must share it with motorists who also, of course, must observe the safety rules of the highway. But these rules do not require the motorist to do what is superfluous and what is unreasonable. With a street car stopped at least 150 feet away, Rice did not go beyond the bounds of prudence in assuming that he could straighten out his automobile on the car track before the street car could complete its [458] operation of discharging and receiving passengers; nor did he do violence to the code of reasonableness, binding on every motorist as well as motorman, for believing that, under the circumstances, the street car would not collidingly overtake him.
The appellant contends that because of the moving traffic in the left lane, Rice should have waited until that traffic abated or, since there was no abatement, he should have retreated to the parking spot from which he had emerged. Neither action was called for, or, in fact, feasible. To have waited until the traffic in the left lane abated might have meant waiting all day. And, to have backed up to the parking spot, with the left traffic lane moving, the street car advancing, and the right lane filled with parked cars would have required a deftness and engineering skill which might have taxed the combined ingenuity of a surveyor’s team and a helicopter crew. The law does not require a motorist to exercise any such genius to extricate himself from a trap caused by a motorman’s flagrant negligence.
And then, it is a question whether an attempt on the part of Rice to retreat, in the face of the seething traffic at that moment, might not have accentuated rather than diminished the danger to all concerned. The able and learned Trial Judge well said in this connection: “Whether it was reasonable for him to stay on the tracks, waiting to get in the far line or to straighten out on the track; whether he should have backed into the place he had vacated, and whether, if he had altered his angle of approach, he would have had to manoeuvre hardily to get back in again — these were obvious issues for the jury.”
A similar state of affairs occurred in the case of Natvig v. P. R. T,, 293 Pa. 355. There, the plaintiff moved out from a parked position when the involved street car was 150 feet away. She signalled her inten[459] .tion to enter the street car tracks. Later, when the car was 100 feet distant, she signalled again. The motorman did not stop moving and crashed into her automobile. In sustaining the ensuing verdict, this Court said through Justice (later Chief Justice) Kephart : “When the woman held out her hand and the trolley car was 100 feet away, the motorman had ample notice of the fact that she intended to use a portion of the space on which the trolley car must move. This notice came from the fact that her car, in backing, was near the tracks, — in itself a warning — and from the signal given by her. The motorman should have governed himself accordingly . . . The accident could be likened to a rear-end collision where the oncoming trolley or vehicle had ample opportunity to see the object ahead and stop or slacken its speed.”
To find Rice guilty of contributory negligence as a question of law, would be to say that he should have waited in his parking place until all traffic on Third Street had ceased which would have been many hours later and it would be to say that when a motorist sees a trolley car anywhere on the streetscape he must remain frozen to his present spot until the trolley disappears. Of course, the law never said that and does not say it today. In McClintock v. Pittsburgh Rwys. Co., 371 Pa. 540, we approved what was said in Shannon v. P. R. T., 115 Pa. Superior Ct. 494, by the Superior Court: “The mere sight of a trolley car in the distance does not prevent the driver from attempting to cross if such distance would appear to afford the opportunity to the ordinary prudent person ... It was for the jury to decide as to whether he exercised the reasonable care required under the circumstances. There ‘is no doubt, taking as we must, that his narration is true, the jury could find that there was ample time for the motorman to stop his ear when he saw the plaintiff on the track.”
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Opinion by
Mb. Justice Musmanno,
Charles Rice, the plaintiff in this case, was injured when his automobile was struck by a street car of the defendant Philadelphia Transportation Company. The jury returned a verdict of $20,000, and the defendant company moved for judgment n.o.v., charging contributory negligence. It also moved in the alternative for a new trial on the ground of excessive verdict. The lower court refused both motions and the defendant appealed.
Reading the record through the eyes of the jury, which resolved all contradictions, doubts, and ambiguities in favor of the plaintiff, the following narrative of fact is authorized. On September 8, 1955, Charles Rice got into his automobile which was parked on the east side of Third Street in Philadelphia and moved out into that thoroughfare, intending to travel in a northward direction. Before leaving the curb he looked in both directions and noted a street car in a stationary position about 150 feet distant, south of Pine Street which intersects Third Street. This one-way highway accommodates three lanes of travel, the middle one occupied by a car track. Heavy automobile traffic was moving north on the west side of the street and many automobiles were parked on the east side. The lane open for Rice was the street car track. The approach from his parked position to the street ear lane was one which required Rice to make a wide turn. As he reached the first rail of the car track, he indicated with his hand that he was making a right turn, having already displayed his mechanical signal to the same effect. At this point the street car was still stopped [457] below Pine Street taking on and discharging passengers. Thus reassured that he was in no danger from the street car, he moved ahead cautiously — at about one mile per hour.
When his left front wheel reached the outer (or western rail), the street car started forward with an immediate acceleration to 25 miles per hour and continued at that speed with no deceleration at any time. Rice saw himself trapped. He could not go forward because of the heavy auto traffic in the western lane and he could not back up into his former parking space because of the congestion behind him. He stopped dead, hoping and assuming that the motorman would see his plight and allow him time to extricate himself. The street car, however, relentlessly advanced and crashed into the left front of his automobile. When Rice expostulated to the motorman, the latter replied: “I am sorry, fellow, when I saw you it was too late.”
It is argued by the defendant company on this appeal that the plaintiff was guilty of contributory negligence in that he voluntarily placed himself in a position of danger. The danger in which the plaintiff placed himself was one every motorist faces when he takes his automobile into street car tracks, but it is a danger of no consequence if motormen observe, as they are required to do, the traffic ahead and have their cars under control. While street cars have a superior right to the use of their tracks, that right is not an exclusive one. They must share it with motorists who also, of course, must observe the safety rules of the highway. But these rules do not require the motorist to do what is superfluous and what is unreasonable. With a street car stopped at least 150 feet away, Rice did not go beyond the bounds of prudence in assuming that he could straighten out his automobile on the car track before the street car could complete its [458] operation of discharging and receiving passengers; nor did he do violence to the code of reasonableness, binding on every motorist as well as motorman, for believing that, under the circumstances, the street car would not collidingly overtake him.
The appellant contends that because of the moving traffic in the left lane, Rice should have waited until that traffic abated or, since there was no abatement, he should have retreated to the parking spot from which he had emerged. Neither action was called for, or, in fact, feasible. To have waited until the traffic in the left lane abated might have meant waiting all day. And, to have backed up to the parking spot, with the left traffic lane moving, the street car advancing, and the right lane filled with parked cars would have required a deftness and engineering skill which might have taxed the combined ingenuity of a surveyor’s team and a helicopter crew. The law does not require a motorist to exercise any such genius to extricate himself from a trap caused by a motorman’s flagrant negligence.
And then, it is a question whether an attempt on the part of Rice to retreat, in the face of the seething traffic at that moment, might not have accentuated rather than diminished the danger to all concerned. The able and learned Trial Judge well said in this connection: “Whether it was reasonable for him to stay on the tracks, waiting to get in the far line or to straighten out on the track; whether he should have backed into the place he had vacated, and whether, if he had altered his angle of approach, he would have had to manoeuvre hardily to get back in again — these were obvious issues for the jury.”
A similar state of affairs occurred in the case of Natvig v. P. R. T,, 293 Pa. 355. There, the plaintiff moved out from a parked position when the involved street car was 150 feet away. She signalled her inten[459] .tion to enter the street car tracks. Later, when the car was 100 feet distant, she signalled again. The motorman did not stop moving and crashed into her automobile. In sustaining the ensuing verdict, this Court said through Justice (later Chief Justice) Kephart : “When the woman held out her hand and the trolley car was 100 feet away, the motorman had ample notice of the fact that she intended to use a portion of the space on which the trolley car must move. This notice came from the fact that her car, in backing, was near the tracks, — in itself a warning — and from the signal given by her. The motorman should have governed himself accordingly . . . The accident could be likened to a rear-end collision where the oncoming trolley or vehicle had ample opportunity to see the object ahead and stop or slacken its speed.”
To find Rice guilty of contributory negligence as a question of law, would be to say that he should have waited in his parking place until all traffic on Third Street had ceased which would have been many hours later and it would be to say that when a motorist sees a trolley car anywhere on the streetscape he must remain frozen to his present spot until the trolley disappears. Of course, the law never said that and does not say it today. In McClintock v. Pittsburgh Rwys. Co., 371 Pa. 540, we approved what was said in Shannon v. P. R. T., 115 Pa. Superior Ct. 494, by the Superior Court: “The mere sight of a trolley car in the distance does not prevent the driver from attempting to cross if such distance would appear to afford the opportunity to the ordinary prudent person ... It was for the jury to decide as to whether he exercised the reasonable care required under the circumstances. There ‘is no doubt, taking as we must, that his narration is true, the jury could find that there was ample time for the motorman to stop his ear when he saw the plaintiff on the track.”
[460] In High v. Reading Transit Co., 97 Pa. Superior Ct. 477, the plaintiffs car was struck by a street car when it moved out from its parking place. The Court approved of the lower court’s language in refusing judgment n.o.v.: “He had to swing his car far enough out into the street to enable him to clear the car ahead; that is, he had to proceed at an angle from the curb . . . He had a right to assume that others using the street would use due caution in accordance with the circumstances to avoid injury to him. He was not bound to anticipate the defendant’s trolley car would approach at a reckless speed ... or that it would not be operated with due care.”
At the time of the collision the plaintiff complained to the motorman: “What’s the matter, didn’t you see my signal? I was sitting on the track.” Prom this the appellant argues: “One who, knowing that a streetcar is approaching, voluntarily leaves his vehicle standing on the track when there is no reason, mechanical or otherwise, requiring him to do so, is guilty of contributory negligence as a matter of law.”
But Rice, by his use of the word “sitting”, did not mean he remained on the track long. The posture of sitting does not necessarily mean the consumption of a long period of time. The word is purely relative. One who sits on a hot stove would surely not sit for more than the fraction of a second. The defendant contends that, based on a mathematical computation made by counsel from the testimony of various witnesses as to distances, speeds, and locale, the plaintiff was “sitting” on Third Street for 30 seconds.