Black v. Philadelphia Rapid Transit Co. , 239 Pa. 463 ( 1913 )

Opinion by

Mr. Chief Justice Fell,

The plaintiff was injured by running his bicycle into the side of a street car at the intersection of two main streets. He was riding east on Federal street, which is fifty feet wide, and the car was running south on Twenty-second street, which is sixty feet in width. When he reached the west house line of Twenty-second street, he saw the car sixty or eighty feet north of Federal street and he was twenty-seven feet from the nearest rail. He expected the car would stop before crossing Federal street and he intended to go in front of it. But before he reached the curb, he saw the car opposite the corner and in motion, and he then turned north on Twenty-second street intending to go back of the car and ran into the back step or the side of the back fender. When he turned he was more than thirteen feet from the nearest rail and was running at the rate of two miles an hour and could have stopped within five feet.

The plaintiff was at no time in a position of danger that called for the stopping of the car, or the slackening of its speed by the motorman; he had started to turn north before he reached the curb at the corner of the street and this action indicated an intention to go north on Twenty-second street; he was moving very slowly and there was no apparent danger of colliding with the car as he was not near it until he guided his bicycle into its rear step. If there was negligence on the part of the motorman, it was in not stopping on the north side of Federal street. But this did not cause the accident. The plaintiff knew before he reached the curb that he could not safely go in front of the car and had turned north on Twenty-second street. He had ample room in which to turn and ample time in which to stop. The proximate cause of the accident was the careless operation of the plaintiff’s bicycle.

In his examination, the plaintiff’s statements of the occurrence were contradictory. On some of them he was entitled to go to the jury and on some he was not and the net result of his testimony was in doubt. If his examination hád rested here, it would have been for the jury to have reconciled the conflicting statements: Ely v. Railway Co., 158 Pa. 233; Cronmuller v. Evening Telegraph, 232 Pa. 14. But it did not rest here. The plaintiff’s attention was called to the contradictions in his testimony and the irreconcilable statements he had made were pointed out to him and he was asked which of them were correct. His final statement of the fact is that by which his case must be judged and as it showed contributory negligence, a nonsuit was properly entered.

The judgment is affirmed.