Miller v. Tiedemann , 249 Pa. 234 ( 1915 )

Opinion by

Mr. Justice Moschzisker,

The plaintiff recovered a verdict for damages suffered through the death of her husband, who, on January 22, 1912, at two o’clock in the afternoon, was knocked ° down and killed by the defendant’s automobile. Judgment was entered on the verdict and the defendant has appealed; she assigns for error the refusal to give binding instructions and the subsequent refusal of judgment non obstante veredicto in her favor.

Since the jury found for the plaintiff, the evidence must be looked at in the light most favorable to her, and whenever it is in conflict, so that either of two inferences or conclusions is possible, that which most strongly supports the verdict must be adopted. When the testimony is so viewed, these facts appear: Mr. Miller was struck by the defendant’s automobile while he was in the act of crossing from the west to the east side of 5th street, about midway between Chestnut and Market streets, in the City of Philadelphia. A large building, known as The Philadelphia Bourse, is located at this point, on the east side of 5th street between Ludlow street, on the north, and Ranstead street, on the south. Ranstead street runs from 4th to 5th streets, and directly opposite its entrance into 5th street, running westward from the west side of that highway, is an alley called Crockett’s Court. The roadway of 5th street, from Chestnut street to Ranstead Street, a distance of about 58 yards, is 26 feet wide, but immediately above Ran-stead street, in front of The Bourse, this widens to 39 feet. A single line of car tracks is located in the center of 5th street, as of the width of 26 feet, and upon this line trolley cars run to the north. At the time of the accident, some wagons were standing on the west side of 5th street immediately south of Crockett’s Court, and an. automobile was standing directly opposite on the east side of, 5th street, at the corner of Ranstead street A doublé team, hauling á silgar wagon, at a slow trot, was coming northward on 5th street in the car track, and the defendant’s automobile was back of this wagon, proceeding in the same direction. About 18 feet north of the north line of Crockett’s Court some crossing stones ‘ were laid from the west curb of 5th street to the car track, and this was á usual and customary place for many pedestrians to cross that thoroughfare. During the last ten years, the defendant’s chauffeur had frequently visited the neighborhood of 5th and Chestnut streets, at all hours of the day, and he admitted familiarity with the prevailing conditions at the point of the accident. The custom and traffic regulations of Philadelphia require that, when a driver desires to pass a vehicle in front of him, he must turn to the left, when possible; that is, one passes a conveyance going north on the west side. When approaching Ranstead street the driver of the defendant’s automobile decided to pass the vehicle in front of him; instead of keeping in the track, behind this wagon, until he reached a point beyond the place where the west side of 5th street was obstructed by the standing teams, he then and there turned his car to the east, and, after clearing the wagon and team which he desired to pass, swung his machine to the northwest, in order to regain the track; to accomplish this the motor had to go through a space of from 10 to 20 feet between the moving wagon it had just passed and the automobile which was standing on the east side of 5th street at the corner of Ranstead street. The plaintiff’s husband was walking eastward across 5th street on the before-mentioned crossing stones; when he reached a point near the middle of the car track, about 12 feet from the west curb of 5th street, the defendant’s motor, which had been hidden from his view, suddenly emerged from the east side of the sugar wagon and team, then approaching in the track, and struck and killed him. The chauffeur’s seat was so low that he could not see over the horses’ heads, and, in consequence, he did not see Mr. Miller until . actually upon him. At the time of the accident the car was running from 20 to 25 miles an hour, and gave no warning of its approach; after coming in contact with Mr. Miller, the machine ran about 20 feet beyond the point of the accident before it was stopped, dragging his body under it. Although the testimony depended upon by the defendant would show a somewhat different condition of affairs, yet, the foregoing facts could be found from the evidence relied upon by the plaintiff.

The case was well presented by the trial judge, and neither side excepted to his charge; but, on this appeal, it is most strenuously contended that the plaintiff’s husband was so plainly guilty of contributory negligence, in stepping in front of the moving automobile, that judgment should be entered here for the defendant. It is true, Mr: Miller was not crossing the street at the end of a block, still he was doing so at a point which the defendant’s chauffeur knew was customarily, and very generally, used for that purpose. The presumption is that Mr. Miller exercised due care according to the surrounding circumstances; although some of the evidencé depended upon by the defendant would indicate a lack of proper care on the part of the deceased, -in not seeing and avoiding the approaching car, 'yet the de: féndant’s chauffeur, while stating at one point in his testimony that Mr. Miller “must have seen me beforé I did him,” plainly said, more than once, that he could not see the man he struck until he was actually upon him, and that the latter could not see him (the driver) until approximately the same time, saying, “I couldn’t see him for- the horsés........he couldn’t see me either”— “I'couldn’t see him-for the horses, and he couldn’t see me”—“I said I couldn’t see Mr. Miller; until I hit him, nor he couldn’t see me.” On the whole, it seems clear that the : issues of contributory negligence on the part of plaintiff’s-husband and of the defendant’s negligence were both properly submitted to the jury.

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