Woomer v. Altoona & Logan Valley Electric Railway Co. , 1922 Pa. Super. LEXIS 66 ( 1922 )

Opinion by

Gawthrop, J.,

Defendant appeals from a judgment entered on a verdict rendered against it in a suit in trespass for damages to plaintiff’s automobile truck resulting from a collision at a grade crossing. It complains that there was error: 1, in the charge; 2, in the refusal to enter judgment n. o. v. We shall consider these questions in their inverse order.

Looking at the evidence of plaintiff, and accepting as established by the verdict, every fact and every fair inference therefrom favorable to him, we deduce the following facts: Plaintiff was driving a heavy automobile truck, loaded with coal, southward on Eleventh Street, in the City of Altoona, at ten o’clock p. m. There were four lights on the truck, two on the front of the radiator and two at the dashboard. He approached at a right angle a grade crossing of defendant’s line on Eighth Avenue. When he was at the curb line of Eighth Avenue, about twenty feét from tbe nearer rail, he stopped, looked both east and west for cars and saw one standing on a turnout about one hundred and four feet to the east. He saw nothing approaching from the west, although he could see seventy-five feet in that direction. He continued looking in both directions as he started to move toward the crossing in low gear at a speed of about two miles an hour. About the time the front end of his truck reached the first rail, he saw a car approaching from the west at a distance of approximately one hundred and twenty-five feet and running at a speed of eighteen or twenty miles an hour. He stopped immediately with the front of his truck extending about fourteen inches over the first rail. Before he had time to back, the car collided with the truck, pushed it out of the way and ran a square before it stopped. Upon such facts, the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury. Plaintiff did not violate any positive rule of law. He stopped at the building line, looked and saw nothing which in his judgment should have prevented his going across the tracks. When he started again, he continued to look and stopped as soon as he saw the car. The jury was warranted in finding that he exercised due care under the circumstances and that the motorman could have stopped his car and avoided the accident if he was running at a proper speed and was looking for traffic approaching the crossing, and that the failure to do so was negligence. The distance which the car went1 after the collision tended to prove either an unusual speed at the crossing or failure to look for vehicles at the crossing, or both. The truck on the car track in full view of the motorman gave him notice of the danger, and it was his ■duty to approach it under proper speed, and to have his car under such control as the circumstances required. We have held that where an automobile stalls upon the track of a street railway company at a grade crossing at a point where a motorman of a car two hundred and fifty feet away lias a full view of the automobile, and tbe motorman so operates bis car as to run into tbe automobile, tbe question of tbe motorman’s negligence and tbe chauffeur’s contributory negligence is for tbe jury: Mead v. Central Pa. Traction Co., 63 Pa. Superior Ct. 76. We agree with tbe learned trial judge that tbe questions of defendant’s negligence and plaintiff’s contributory negligence were for tbe jury.

That part of tbe charge which is assigned for error is as follows:

“In this connection we call your attention to tbe fact that when a trolley car and a machine reach an intersecting street tbe one reaching tbe street first has tbe right of way; so, if this automobile reached tbe street first and attemped to get across, then it was tbe duty of tbe motorman to have bis car under such control as to permit that machine to get across. On tbe other band, if that trolley car was at tbe intersecting street first, it was tbe duty of this automobile driver, tbe plaintiff, to have bis car under such control as to stop; for then, finder those conditions, tbe trolley car bad tbe right of way; and, if you believe tbe trolley car was at the intersecting point first, and bad tbe right of way, it was tbe duty of tbe plaintiff to have bis car under such control as not to run into it.” Electric street railway companies have not tbe exclusive use of their tracks, but in their use their rights are superior to those of tbe traveling public and their cars have tbe right of way. No one is warranted in assuming that if be first reaches tbe crossing be may go on, and that tbe whole duty of care and vigilance is then cast on tbe motorman. Tbe duty to look for an approaching car is an absolute duty and failure to do so is negligence per se. This duty is not performed by looking when first entering on tbe street, but continues until tbe track is reached: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 186; Burk v. Union Traction Co., 198 Pa. 497. In this portion of bis charge, tbe learned trial judge, doubtless inadvertently fell into error by stating the law applicable to the case of one vehicle arriving at an intersection well in advance of another, as declared in Simon v. Lit Bros., Inc., 264 Pa. 121; Weber v. Greenebaum, 270 Pa. 382, and Black v. Mark, 273 Pa. 138. We are compelled to sustain the first assignment. All the others are dismissed.

The judgment is reversed with a venire facias de novo.