McLoughlin v. Philadelphia Rapid Transit Co.

Opinion by

Head, J.,

The appellant does not seek a new trial. Unless the learned trial judge should have directed a verdict for defendant, or thereafter entered judgment in its favor on the whole record, the assignments of error must be overruled. We look therefore to the testimony of the plaintiff, accepting as established by the verdict, every fact supported by his oath, and every fair inference therefrom favorable to him. We thus deduce the following facts.

Plaintiff, engaged in the business of a huckster, was driving a single horse hitched to his wagon, over a route he had traveled daily for several years. Driving west on Juniata street he came to the point of its intersection with Germantown avenue, running north and south on which defendant operated cars moving in each direction. At the house line he stopped. Looking northward he found there was no car in sight. Coming from the south was a car then approaching Dounton street, next west of Juniata street. According to his observation and experience, extending over a period of several years, that was a regular stopping place for cars on the avenue. He saw two women standing on the cartway of the avenue, between the curb and the northbound track apparently waiting to board the approaching car. Dounton street Avas 165 feet Avest of Juniata street. The plaintiff, intending to cross the northbound track and then turn southward on the avenue, started his horse. Just before his horse stepped on the track he again looked both north and south. To the north no car was in his view. To the south he saw the car coming. He estimated its distance from him to be about one hundred feet. In this estimate he was corroborated by the testimony of a disinterested eye witness. Before he had cleared the northbound track the car struck the rear wheel of his wagon, causing the injuries complained of.

Upon this state of facts could the learned trial judge have declared, as matter of law, the plaintiff had been guilty of contributory negligence? We think not. Many decisions have recognized the difficulty of accurately estimating the distance of a car moving towards the observer or the speed at which it is traveling. It is clear the plaintiff did not violate any positive rule of law. He stopped at the house line, looked both ways, and saw nothing that in his judgment should have prevented his moving towards the track. Just before he reached the track he looked again. There is no mandatory rule of law that required Mm to refrain from crossing the track because there was an approaching car in sight. In Connor v. Pbg. Ry. Co., 50 Pa. Superior Ct. 629, we endeavored to state the legal principle by which the relative functions of court and jury should be discharged in cases of this class. “It is but to state a universally recognized rule, both of law and of reason, to say that a pedestrian may not undertake to cross a track in front of a visibly approaching car, running under normal conditions, without leaving himself sufficient time to clear the track before the arrival of the car. But it is equally true that a pedestrian, desiring to cross a city street, is not prohibited either by law or reason from doing so merely because a car is approaching at some distance away although plainly in sight. Otherwise, the streets of our cities would have to be given up exclusively to the use of the cars operated thereon. Between these two extreme cases there must be a zone of reasonable safety within which a pedestrian may undertake to cross a street, although a car be approaching, without it being apparent that he has violated any rule either of law or common sense. TJnder such circumstances, the propriety of Ms determination to cross the street, the reasonableness of his conclusion, or the lack of it, must be submitted to and passed upon by a jury. It is to be always remembered that while the approaching car is visible to the pedestrian crossing the street, he in turn is visible to the motorman operating the car, and under such circumstances there are mutual rights and obligations.” Whilst it is true the defendant company has the superior right of way for its cars on its tracks, that right is not exclusive. The pedestrian, or driver of an ordinary vehicle, also has rights and in so far as these rights may conflict each must be exercised with due regard, for the other.

Was the plaintiff right in his statement that when he started from the house line on Juniper street, the defendant’s car was south of Dounton street, 165 feet distant? Was his judgment that of a reasonably prudent man when he determined, just as he reached the track, that the car, having only traveled about 65 feet whilst he moved from the house line to the track, was still 100 feet distant, and there was time to cross in safety? The verdict has answered these questions in his favor. There was, therefore, no such clear and convincing evidence of his negligence as would have warranted the trial judge in refusing to submit the case to the jury.

The judgment is affirmed.