DocketNumber: Appeal, No. 157
Citation Numbers: 51 Pa. Super. 163
Judges: Head, Henderson, Morrison, Orlady, Porter, Rice
Filed Date: 7/18/1912
Status: Precedential
Modified Date: 9/9/2022
Opinion by
The plaintiff’s husband was killed by the defendant’s automobile when it was being driven over a much traveled paved business street, which was occupied by two street railway tracks.
The defendant was driver for five or six others and was operating a seven passenger Packard automobile at a rate of speed which is described by a number of witnesses, at from fifteen to forty-five miles per hour. Twelve witnesses testified that no signal was given of its approach. The plaintiff’s husband was a passenger on a car which stopped nearly opposite to his home, and at a place that was a well-known, regular stopping place. While there was no street crossing at this point, a sign of — cars stop here— had been nailed to a telegraph pole, and the car company as well as the traveling public recognized it as a regular
The defendant’s negligence can hardly be disputed. Common sense and common prudence, join in demanding that the most ordinary care must prohibit such a use of a public thoroughfare, and this accident shows a most reckless disregard of life and property by the defendant. The contributory negligence of the plaintiff was fairly and fully submitted to the jury in a charge that represented the law so clearly that all the points submitted by the plaintiff were affirmed, as well as those submitted by the defendant, except the one asking for binding instructions. The evidence fails to show any loitering by the deceased, and it affirmatively shows that as the street car from which he alighted passed on, he started directly across the street, because his home was there located. There was positive testimony that he did look in the direction from which the automobile approached and that he signaled to it; that there was twelve
The automobile had no superior right to the use of the street car track as such like a street car. Under the evidence, the place occupied by the deceased was the equivalent of a street crossing, used and recognized as such by the public and the street car company in making that 'location a place for the receipt and discharge of passengers.
Whether the sign of — cars stop here — was unplaced at the time this accident occurred, is immaterial, as the defendant must have seen the street car and that it had stopped. He was bound to presume that passengers were likely to be discharged at that time and place, and his automobile should have been under proper control to avoid such an unnecessary accident.
The judgment is affirmed.