Fricker v. Philadelphia Rapid Transit Co. , 1916 Pa. Super. LEXIS 172 ( 1916 )

Opinion by

Head, J.,

The plaintiff, Harry J. Fricker, seeks to recover in this action compensation for personal injuries alleged to have resulted from the negligent act of the defendant. At the conclusion of the trial the learned judge submitted to the jury, in a charge of which the defendant can make no complaint, the questions of the defendant’s negligence and the plaintiff’s contributory negligence. Their verdict was in favor of the plaintiffs. Thereafter the court entered a judgment n. o. v. in favor of the defendant and the plaintiffs appeal. In such a case we must take the evidence produced by the plaintiff as true and give to him the benefit of every fact supported by such testimony and every favorable inference that may be fairly drawn therefrom. To determine whether or not the action of the learned court below was correct, we need not at all consider the testimony offered by the defendant or advert to the points at which it conflicts with the testimony of the plaintiffs and their witnesses.

That there was a collision of an automobile driven by an employee of the defendant and the motorcycle on which the plaintiff was riding is not a matter in dispute. The exact location at which the collision occurred becomes a question of considerable, if not controlling importance. Waterloo street, in the City of Philadelphia, is a narrow street running north and south. Lehigh avenue is a wide street running east and west intersecting Waterloo street at right angles. Street cars are operated both east and west on the avenue. The plaintiff was riding a motorcycle going north on Waterloo street, intending to turn east on the avenue. An electric automobile, operated by the defendant’s servant, was moving east on the same avenue. A number of small children from a nearby institution had gathered at the intersection of the street and avenue where they were loitering or playing. As the plaintiff approached the avenue under these conditions he shut off his engine, and, as he expresses it, drifted slowly around the corner. He kept close to-the curb line and continued to move eastward until he had covered a distance varying, according to the testimony of himself and his witnesses, from ten to twenty-five feet. At that point he was struck on the left leg by the front wheel and fender of the defendant’s automobile and the injuries of which he complained re-suited. A witness, Taylor, testifies he had a clear view of the accident. When asked to locate the point at which it happened, he fixed it at twenty or twenty-five feet, in his judgment, east of the intersection of the two streets. Another witness, who was also in a position where he had an unobstructed view of the collision, fixed the distance at ten to twelve feet, and this corresponded with the opinion of the plaintiff himself. The plaintiff had not observed the automobile until it struck him. Could the court below, from this fact, properly determine, as a matter of law, he had been guilty of contributory negligence? We think not.

It is fair to presume that in making the turn at the corner his attention would be, to a very considerable extent at least, centered on the group of small children for whose safety he was obliged to be cautious. At all events, if we accept the testimony to which we have referred, the plaintiff was fairly installed on Lehigh avenue and on the portion of that street where he had a perfect right to be. The street was of ample width to permit the automobile, if carefully operated, to pass him without even coming close to him. The witness Taylor testifies the man driving the automobile “was looking across the street at something, I do not know what, but anyhow he smashes into this fellow (meaning the plaintiff).” It is to be observed the automobile did not come squarely behind the motorcycle and strike it in the rear. The collision, as stated, was with the front wheel and mud guard of the automobile which struck the plaintiff on his left leg. Had- the driver of the car intended to pass the plaintiff and move in just ahead of him keeping near the curb line, but unfortunately miscalculated the space between him and the plaintiff, the accident might have occurred just in the manner described by the plaintiff and his witnesses. As we have said, if we accept the testimony of these witnesses, as the jury had a right to do, we can see no warrant for a determination by the trial court, ' as a matter of law, that the plaintiff; bad been guilty of contributory negligence.

But it is argued that even if this be true, tbe plaintiff bas failed to establish any negligence on tbe part of tbe defendant because it is not shown by any satisfactory evidence that tbe car was running rapidly. It does not follow, however, that even if tbe car were running at a moderate rate of speed, its driver, through incompetency, inattention, or a mistake in judgment, might not be charged with negligence and become legally responsible for injuries to another resulting from bis management of tbe car. Tbe circumstances of tbe case were unusual, and, in our judgment, tbe questions of the defendant’s alleged lack of reasonable care and of the plaintiff’s contributory negligence should have been submitted to tbe jury under proper instructions from tbe trial judge. As there is no complaint of tbe manner of tbe submission tbe learned court fell into error in denying to tbe plaintiffs tbe benefit of their verdicts.

Tbe judgment is reversed and tbe record remitted to tbe court below with direction to enter judgment in favor of tbe plaintiffs on tbe verdict.