Hause v. Lehigh Valley Transit Co. , 1909 Pa. Super. LEXIS 196 ( 1909 )

Heab, J.,

dissenting:

At the time of the accident the plaintiff was traveling along a public highway in a rural community. A portion of the road was occupied by the tracks of the defendant company, upon which it operated cars., with some interval of time between them as is customary in extra-urban traffic. The plaintiff had a right to travel upon any part of the highway, even upon that portion occupied by the defendant’s tracks. The right of the defendant upon its own tracks was superior but not exclusive. But that superiority could not be asserted without giving to anyone obstructing the track a reasonable opportunity to get out of the way of the car.

Wherever the plaintiff could lawfully travel upon the highway he could lawfully stop his automobile for a necessary or proper purpose and during a reasonable time. Whilst thus lawfully stopped his right to the portion of the highway occupied by his vehicle was exclusive. His momentary stop to pay toll was not only lawful but compulsory. He was returning to his car when the motorman of the defendant, in broad daylight, with the automobile standing in plain view, struck it with the street car. If while some distance from it he thought he could clear it, the use of his eyes when he came close to it would have warned him of his error. And his car, if under control, could have been stopped without doing any injury. But if it became material to draw from the conduct or declarations of either the plaintiff or motorman, any inference as to the state of mind, purpose or intent of either, such inference was one of fact to be drawn by a jury from pertinent evidence introduced at the trial.

I am unable to see how, under these circumstances, the learned trial court could declare, as matter of law, that the plaintiff was guilty of contributory negligence and could not recover. I would reverse the judgment and send the case to the jury-

President Judge Rice and Henderson, J., join in this dissent.