Fitzgerald v. Tone , 1926 Pa. Super. LEXIS 168 ( 1926 )

Argued April 22, 1926. The plaintiff was about to cross a street on which was a double track of street railway. He stopped at the curbstone and looking east, saw a street car approaching about four hundred feet away and looking west, he saw another car approaching on the same street, three or four blocks away. He then walked toward the nearest track and when one foot away from the first rail, saw the car coming from the east about sixty feet away and apparently slowing down in order to stop. There were people waiting to get on the car and three or four of them had signalled the motorman to stop. The stop was a safety stop where the cars always stopped, whether passengers got on or not. He proceeded to cross the track in front of the car approaching from the east and came to the "dummy," which is a space of four feet between the tracks, looked to the west and saw the car, which he had previously noticed three or four squares away, within twenty feet of him and coming on. Being caught between the two cars, he stepped back three steps in front of the eastbound car which had increased its speed and was struck and injured by the eastbound car.

The verdict was in favor of the plaintiff and the court afterwards entered judgment in favor of the defendant n.o.v. The plaintiff was right in anticipating that he could cross the track safely so as to escape the eastbound car; he however, failed in his duty when, before he attempted to cross, he neglected to look for the westbound car, which he had seen and knew was approaching. He took his chances in that respect.

If we admit that the motorman on the eastbound car was negligent in not stopping, we must also take into consideration that the failure of the plaintiff to look for the westbound car contributed to the accident. There is no allegation that there was negligence in the operation of the westbound car and the duty of stopping which is the only possible basis of negligence on the part of the eastbound car, does not apply to the westbound car. Plaintiff does not say that he essayed to cross the street in front of both cars because the motormen of both cars were in duty bound to stop them.

Although he was struck by the eastbound car, his negligence in going in front of the westbound car, was the cause of his backward movement which resulted in the accident. He cannot excuse the exercise of poor judgment in getting out of danger, for his own act placed him in it. "The doctrine that a man in a position of danger is not responsible for the results of an error of judgment committed in his attempt to get out of it, is to be taken with the essential qualification that he must have gotten into the danger without negligence or fault of his own." Aiken v. P.R.R., 130 Pa. 380. See also Montgomery v. Philadelphia, 270 Pa. 346.

If the space between the two tracks, known as "the dummy," were wide enough to afford a place of safety, as is usual in steam railways, it would be the pedestrian's duty to look for a car approaching on the second track after he in safety crossed the first track. Nolder v. Pennsylvania R.R. Co., 278 Pa. 495. Where the dummy is so narrow as to make it impossible for one to occupy it when two cars are passing each other, it would emphasize the duty of one about to cross a double railway track to look in both directions before attempting to cross. "It being the duty of a pedestrian to keep a lookout while crossing the tracks, one who steps upon a second track, after crossing the first, and is immediately struck by an engine or car plainly visible before he stepped thereon, will, in general, be held guilty of contributory negligence." Patton v. George et al., Receivers, Appellants, 284 Pa. 342, 345, (a street railway case).

The judgment is affirmed.