Knobeloch v. Pittsburgh, Harmony, Butler & New Castle Ry. Co. , 266 Pa. 140 ( 1920 )

Opinion by

Mr. Justice Frazer,

Plaintiff sued to recover damages for the death of her husband caused by a collision, at a grade crossing, between an automobile deceased was driving and a trolley car of defendant company. The court below submitted the case to the jury; a verdict was rendered for plaintiff and motion for a new trial and for judgment non obstante veredicto were refused and judgment entered on the verdict, from which defendant appeals.

The first, second and third assignments of error to the refusal of the trial judge to affirm points for charge submitted by defendant, show no exceptions taken and are, consequently, defective: Tarnogurski v. Rzepski, 252 Pa. 507. The fifth assignment is to refusal of defendant’s motion for new trial and it also contends the verdict is against the weight of the evidence and excessive. The first reason is involved in the discussion of the motion for judgment non obstante veredicto, and as to the second, this court has repeatedly said in a long line of cases, beginning with Smith v. Times Pub. Co., 178 Pa. 481, and extending down to Scott v. American Express Co., 257 Pa. 25, that the question of the amount of the verdict would be reviewed only where so grossly excessive as to shock our sense of justice and to indicate a clear abuse of discretion on the part of the court below. In addition to this, however, the question is not included in the statement of questions involved, and, accordingly, not properly before us: Murphy v. Ahlberg, 252 Pa. 267; Hopkins v. Tate, 255 Pa. 56. There remains for consideration the fourth assignment, which is to the refusal of defendant’s motion for judgment non obstante veredicto. While plaintiff suggests this assignment is not in proper form, no exception having been taken, the judgment of the court appears in the proceedings and, hence, under section 6 of the Act of May 11, 1911, P. L. 279, no exception thereto was necessary: Fisher v. Leader Pub. Co., 239 Pa. 200.

The accident occurred about one o’clock in the afternoon of a clear day at a crossing on the main street of the village of Ingomar, a station on defendant’s interurban trolley line. Immediately before the accident deceased was seen to approach the crossing, and, according to the testimony of two witnesses, stopped his automobile six feet from the first rail of the near track at a point affording him a view up the railway for a distance, as stated by witnesses, of from three hundred to one thousand feet. He proceeded to cross at a speed, estimated by witnesses, of three miles an hour and had crossed the first track and almost cleared the second when the rear end of his machine was struck by defendant’s trolley car, running, according to one of plaintiff’s witnesses, at a speed of at least fifty miles an hour, or, as another witness said, “awful fast according to the other cars that go through there......from 25 to 30 miles anyhow.” A witness testified the car ran five hundred feet beyond the place of the accident before stopping and another estimated the distance as “at least fifty feet anyhow.”

The car was running on the company’s private right-of-way and not on the public highway; this, however, did not lessen the duty of the motorman on approaching the highway crossing to have his car under such control as the circumstances seemed to require, in view of the nature and situation of the crossing and the extent of its use by the public. Under the evidence submitted the jury were justified in finding the speed excessive; accordingly, the question of defendant’s negligence could not have been properly withdrawn from them.

As to the contributory negligence of deceased the evidence shows he exercised such precaution as the law requires on approaching the crossing. He stopped to look within six feet of the first rail of the near track and we must presume he also listened: Smyth v. Phila. & West Chester Trac. Co., 263 Pa. 511. Appellant contends, however, that, assuming deceased stopped before, starting to cross the tracks, he failed to look and see what must have been plainly obvious to him. This conclusion does not follow when we consider the testimony touching the relative speed of defendant’s car and that of deceased and the further fact that deceased had almost cleared the last rail of the outside track when the collision occurred. Assuming he saw the approaching car the fact that he proceeded to cross the track ahead of it did not necessarily convict him of negligence. His duty was to guard against injury from a car approaching at an ordinary and reasonable speed; he was not bound to anticipate and guard against the approach of a car driven at an excessive speed. He had a right to assume the motorman would exercise reasonable care and hold his car under control in approaching the highway: Wagner v. Phila. Rapid Transit Co., 252 Pa. 354; Shields v. Phila. Rapid Transit Co., 261 Pa. 422.

What we have said above considers and disposes of the entire five assignments of error.

The judgment is affirmed..