HALPERT v. EARNSHAW, 304 Pa. 95 (1931)

155 A. 299

Halpert, Appellant, v. Earnshaw.

Supreme Court of Pennsylvania.April 27, 1931.
May 11, 1931.

Negligence — Automobiles — Pedestrian — Street crossing — Contributory negligence — Nonsuit — Refusal to take off — Discretion, no abuse — Appeal.

1. Where a pedestrian without looking steps from a curb to the cartway at a crossing and is immediately struck by an automobile,

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he is guilty of contributory negligence and cannot recover for his injuries. [96]

2. In such case, the appellate court will refuse to reverse because the court below refused to take off the nonsuit, as there was no abuse of discretion. [97]

Argued April 27, 1931.

Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.

Appeal, No. 211, Jan. T., 1931, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1930, No. 1082, refusing to take off nonsuit, in case of Frank Halpert v. G. Allen Earnshaw. Affirmed.

Trespass for personal injuries. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Nonsuit; refusal to take off. Plaintiff appealed.

Error assigned, was order, quoting it.

Frank J. Eustace, Jr., with him Wilson McAdams, for appellant.

Lawrence Cushmore, Jr., and George Gowen Parry, of White, Parry, Schnader Maris, for appellee, were not heard.

PER CURIAM, May 11, 1931:

Plaintiff appeals from the refusal of the court below to take off a nonsuit entered in his action to recover damages for personal injuries sustained when struck by defendant’s automobile.

During the noon hour on October 18, 1928, plaintiff, who had been conversing with a friend on the northeast corner of Broad and Vine Streets, Philadelphia, seeing the traffic officer change the signal light and open pedestrian traffic across Broad Street, started to cross that street, a two-way thoroughfare, and was struck by defendant’s automobile, which made a right-hand turn from Vine Street into Broad Street, as plaintiff took the

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first step from the sidewalk into the cartway. The nonsuit was based on plaintiff’s contributory negligence in failing to observe the moving car coming from Vine Street and practically on him at the time he stepped from the sidewalk. Plaintiff’s own uncontradicted testimony establishes the fact that had he looked before stepping from a place of safety into the roadway he must have seen the approaching automobile. This he failed to do. We find no abuse of discretion in the refusal of the court below to take off the nonsuit.

The order of the court below is affirmed.