Hilliard v. Philadelphia Rapid Transit Co. , 1916 Pa. Super. LEXIS 81 ( 1916 )

Opinion by

Kjephart, J.,

The plaintiff in crossing Second and Chestnut streets diagonally was struck by an east-bound Chestnut street car and injured. There was a fire in the vicinity and the Chestnut street car had been standing for three minutes at the west house line of Second street. Plaintiff thought it would not start because of the fire. In obedience to a signal from the traffic officer the car proceeded at slow speed to cross the street. The plaintiff did not look at the Chestnut street car after he left the curb and was struck upon reaching the car tracks. We do not think the- circumstances surrounding the occurrence were such as to relieve the plaintiff from the observance of the duties enjoined by the numerous decisions of the appellate courts of this State. There is nothing in the plaintiff’s evidence to indicate that there was a suspension of the traffic occasioned by the fire and from the plaintiff’s testimony the car that struck him had a clear track. The plaintiff had an unobstructed view of the car where it was standing. It started after a notice from the traffic officer at a slow rate of speed and was stopped within from one to five feet after he was struck. There is no evidence to dispute the fact that the gong was sounded. He paid no attention to the Chestnut street car after leaving the curb. His attention was centered on the Secqnd street car that he was about to board. The motorman had a right to suppose that the plaintiff Avould stop as the'plaintiff knew that the defendant’s car had the superior right of track. Under this state of facts the plaintiff was not entitled to have his case submitted to the jury: Cornell v. Pittsburgh Rys. Co., 54 Pa. Superior Ct. 230; Underwood v. Pittsburgh Rys. Co., 238 Pa. 332. This court said in Winter v. Mahoning, Etc., Ry. & Light Co., 61 Pa. Superior Ct. 440: “It will not do for a pedestrian standing on the curb, intending to cross a street diagonally, either at a crossing or between crossings, to locate the car before he starts, and then, without further attention to its position, proceed to cross the streets. The law imposes on him a different duty. Before he enters the zone of danger or the path of the car, the duty of observing the car’s position is imperative.” The plaintiff did not observe any of the well-known rules for his own safety which should be common to the ordinarily intelligent man.

The defendant’s motion for judgment non obstante veredicto should have been sustained.. It is here done. The judgment is reversed and directed to be entered for the defendant.