168 A. 777

A. P. Tea Co., Appellant, v. Phila. R.T. Co.

Superior Court of Pennsylvania.October 5, 1933.
October 26, 1933.

Negligence — Street car — Truck — Crossings — Collision — Contributory negligence — Judgment non obstante veredicto.

It is the duty of the operator of a truck, when driving over a double line of street car tracks, to look for the approach of trolley cars at the entrance on each track before attempting to cross it.

The operator of a truck may not rest on the assumption that an approaching trolley car will stop at the crossing. He must pay attention to its approach.

Kilpatrick v. Philadelphia Rapid Transit Co., 290 Pa. 288
followed.

Argued October 5, 1933.

Appeal No. 292, October T., 1933, by plaintiff from judgment of C.P., No. 5, Philadelphia County, September T., 1929, No. 11353, in the case of The Great Atlantic and Pacific Tea Company v. Philadelphia Rapid Transit Company.

Before KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.

Trespass to recover for damages to a truck. Before SMITH, P.J.

Page 375

The facts are stated in the following excerpts from the opinion of the court below:

A collision took place between a truck of the plaintiff loaded with 5 1/2 tons of sugar and a trolley car of the defendant on the 14th day of January, 1929, at 10 o’clock on a clear morning. The truck was proceeding northward on Shackamaxon Street in the City of Philadelphia approaching Girard Avenue. The avenue is one of the widest streets in the city, measuring 87 feet from curb to curb, with a 16 foot sidewalk on the south side. The avenue has a double set of car tracks of the Philadelphia Rapid Transit Company on it. From the south curb of Girard Avenue to the southernmost rail of the eastbound tracks is a distance of 35.6 feet. The distance between each set of rails is 5.19 feet and the dummy between the set of tracks is 6.4 feet. The trolley car, which came in contact with the truck, was on the westbound set of tracks. The distance between the southernmost rail of the westbound tracks and the south curb is 47.19 feet.

When the truck reached the south curb of Girard Avenue the driver thereof stopped, looked to the east and saw the trolley car 250 feet away. At a speed of five miles an hour and in low gear the truck proceeded northward across Girard Avenue. When the front of the truck reached the southernmost rail of the eastbound tracks (or a distance of 35.6 feet from the south curb) the driver looked again to the east. The trolley car was then 100 feet away. Continuing northward the truck crossed the first set of rails and then the dummy between the two sets of tracks slowing down “near to a stop” because of the roughness of the paving between the rails. The driver looked as the truck entered the westbound rails but cannot say how far the trolley car was away at that time. According to his testimony, the bumper of his truck had just passed the north rail of the westbound tracks when the trolley car came in

Page 376

contact with the right side of the truck just back of the cab of the truck. He also testified that as he entered the eastbound rails he could have stopped within the distance of one foot.

There is evidence that immediately before this collision, the trolley car was going at the rate of 30 to 35 miles an hour. There is no evidence of the speed of the trolley from the plaintiff’s chauffeur. The two vehicles were in full view of each other in broad daylight. While the chauffeur testified that he looked before going on the westbound tracks, he could not say how far the trolley was from him. If he had looked, he could have seen. It must be evident that either he did not look, or that if he had, he took a chance of passing in front of the trolley when it was proximate and going at a high rate of speed. He thereby assumed the risk of an obvious damage.

It must have been apparent to the truck driver, if he had been exercising a reasonable degree of prudence and care, that the continuance of the progress of the two vehicles at their respective speeds must result in a collision. If he could have stopped within a distance of one foot before arriving at a place of obvious danger, his duty was to have done so. His failure to stop under all the circumstances amounted to contributory negligence.

Verdict for plaintiff in the sum of $871.18. The court, on motion, entered judgment for the defendant, non obstante veredicto. Plaintiff appealed.

Error assigned, among others, was the entry of judgment.

Robert C. Walden, for appellant.

H. Rook Goshorn and with him Bernard J. O’Connell for appellee.

Page 377

PER CURIAM, October 26, 1933:

The material and controlling facts in this case are sufficiently similar to those in Kilpatrick v. Phila. R.T. Co., 290 Pa. 288, to bring it within the ruling in that case, and on its authority the judgment is affirmed.