Banks v. Shoemaker & Co. ( 1918 )

Opinion by

Mr. Justice Mosci-izisker,

Plaintiff was knocked down and injured by a motor truck belonging to and under the control of defendant company; he sued in trespass and recovered a verdict, upon which judgment was entered. Defendant has appealed, and its assignments of error all center around the refusal of the court below to enter judgment n. o. v.

In view of the verdict, it may be stated that the accident happened under the following circumstances: On a clear day, October 7,1916, about three o’clock, plaintiff came out of a store on the north side of Girard avenue and proceeded to cross that thoroughfare, walking southward upon a footway leading to Earl street, which latter runs southward at right-angles to Girard avenue, from the south side thereof, but does not extend northward therefrom. Girard avenue at this point is 120 feet wide from house to house and 88 feet between curbs, and the center is occupied by a double-track car line on each side of which is a driveway about thirty-five feet wide, the northern one being for westbound and the southern for eastbound traffic. There were no vehicles of any sort, other than defendant’s machine, moving upon the street at or about the time of the accident. When plaintiff reached the center of the avenue, he looked to the west and saw defendant’s automobile some 120 yards away; He continued toward the south curb, keeping in view the advancing machine; but the latter approached at such speed that it came almost upon him before he could reach the curb. In an attempt to avoid being struck, plaintiff stepped backward, toward the center of the street, but the automobile swerved in the same direction. Plaintiff then went quickly forward, but the automobile again pursued him; and, when within six to ten feet of the curb, he was struck, knocked down and badly injured, the machine running up on the pavement before it came to a stop.

The chauffeur admitted that he saw plaintiff crossing Girard avenue when the automobile was at least 269 feet distant from the point of the accident, and that he could have stopped at any time within ten or twelve feet; but apparently he made no serious attempt to do so before the collision occurred.

While the chauffeur and his assistant testified that they were going at the rate of nine miles an hour, yet, from the evidence as to the movements of both plaintiff and the automobile, it is manifest the latter must have traveled at a very much higher speed.

All the issues in the case, including the negligence of defendant and alleged contributory negligence of plaintiff, were properly submitted to the jury. We are not convinced the trial judge should have given binding instructions for defendant or that the court in banc erred in refusing to enter judgment n. o. v.

The assignments are all overruled and the judgment is affirmed.