McGovern v. Union Traction Co.

Opinion by

Mr. Justice Mitchell,

It is conceded that with reference to the speed of the car and the inattention of the motorman there was evidence to take the case to the jury, but the judge nonsuited the plaintiff on the ground of contributory negligence of the deceased.

There are two classes of cases, considered with regard to this kind of accident, in which nonsuits are properly entered, first, the class of which Carroll v. R. R. Co., 12 W. N. C. 348, is the prototype, where a person not looking, or claiming to have looked and not to have seen what was manifestly and unavoidably visible, steps directly in front of a moving car; and, secondly, where a person seeing a clearly impending danger accepts the risk, relying on his own judgment that he can escape it. Of this class Smith v. Electric Traction Co., 187 Pa. 110, is a fair example. In either class the negligence of the injured must be the clear and unavoidable inference from the undisputed facts before the court can pronounce it as matter of law.

In the present case there is affirmative evidence that the deceased stopped at the curb and looked before starting to cross the street. The car which subsequently struck her was then approaching on the north track at a distance variously estimated at 120 to 185 feet. At least one witness testified that it was at about the latter distance, being east of Twenty-sixth street, with the intervening street which the car would have to cross. It is argued by the appellee that the deceased stood “ some time ” on the curb, after looking, before stepping into the street. How far this may have modified her act of looking was, however, clearly for the jury. But it is further argued by appellee, and this is perhaps the pinch of the case, that although the car may have been east of Twenty-sixth street when she started, yet it had crossed that street and was so close to her by the time she reached the north track, and going at such speed, that she was bound to see the danger and stop before putting foot on the track. If this was clear, unquestionably it was negligence. A foot passenger crossing a street, especially a wide one with double tracks, does not do his whole duty by a single look before starting. In the space where cars and other vehicles have concurrent rights with his own, he is bound to keep eyes and ears open for new dangers and to use reasonable care in avoiding them: Nugent v. Traction Co., 181 Pa. 160.

But in the present case the facts are not undisputed. The distance of the car and the rate of speed were the subject of testimony not entirely uniform, and there was no evidence as to the action of the deceased at this point in regard to the approaching car. It was not one of those clear cases that should be taken from the jury.

Another point was made in support of the nonsuit, that there was no sufficient evidence that the car was under the control of the defendant. It appears that the South Street Railway was operated formerly by the' Electric Traction Company, which was subsequently leased to the defendant, with a guaranty of indemnity as to liabilities, etc. It is claimed by appellant that, in fact, the railway was under the defendant’s control at the time of this accident, though the formal lease was not signed till later. Little attention was given to this branch of the case by either party, and the judge distinctly put the nonsuit on the other ground. It is not clear to us how plaintiff can avail himself of the electric company’s rights of indemnity of the Union Traction Company’s liability under contract, but as he may be able to establish a duty to him under the facts or the law, we leave this question open for further development, and reverse on the first ground alone.

Judgment reversed and procedendo awarded.