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UNITED STATES v. PHILADELPHIA TRANSP. CO.

April 18, 1941

UNITED STATES
v.
PHILADELPHIA TRANSP. CO.



The opinion of the court was delivered by: KALODNER

This case was tried without a jury. The action is by the United States of America against the Philadelphia Transportation Company for damages to a United States mail truck.

The facts are virtually undisputed. There was a collision between the defendant's street car and the plaintiff's mail truck, in front of the post office on the north side of Midvale avenue, between 36th and 37th streets. Midvale avenue at that point is downgrade, straight, and has two sets of car tracks in the center of the street. Midvale avenue is 40 feet from curb to curb. The distance from the first rail to the curb is 12 feet 6 inches. The mail truck was 5 feet 7 1/2 inches in width overall.

 Sabin, the driver of the mail truck, stopped his vehicle in front of the post office to "tap" a mail box on the pavement. While he was out of the truck, a westbound street car struck the left hand rear of the truck and pushed it some 15 to 20 feet up on the pavement, the trolley car coming to a stop about 20 or 30 feet after the collision.

 The driver testified that he had chains on the tires of his mail truck. He said that when he reached the post office he pulled out of the car tracks but that he was unable to park the truck along the curb because there was a three-foot high pile of snow which prevented him from doing so. When he came to a stop the mail truck was facing west, parallel to the tracks. The driver said that when he had parked his truck as far from the tracks and as close to the curb as he physically could, he alighted and walked over to the mail box on the pavement so as to obtain its contents, return to the truck, and then continue with the rest of his trip to pick up mail. It was while he was getting the mail out of the mail box on the pavement, which, incidentally, was some 12 feet from the curb, that the driver heard a crash and saw that the westbound street car had struck his truck. He testified that at the time he came to a stop he looked and ascertained that there was no street car in sight.

 The defendant's motorman who operated the street car testified that the point of the accident was some 900 feet west of the crossing, and that he had a full view of the truck in its parked position when he was 300 feet away. He said, however, that he thought there was sufficient clearance to permit the street car to continue on its journey without coming into collision with the mail truck, in which observation he was in error, and hence this suit.

 Testimony was heard in support of the plaintiff's claim that the damages to the truck caused an outlay by the plaintiff of $164.67, and I find that this outlay was necessary and proper and that the prices charged for the material and labor were reasonable and such as prevailed at the time the repairs were made.

 At the conclusion of the case there was a motion by the defendant for a directed verdict.

 The motion for a directed verdict must be denied.

 It is clear that the defendant was guilty of negligence and that the plaintiff was free of negligence, and the verdict must be for the plaintiff.

 The defendant relies on Rothweiler v. Philadelphia Rapid Transit Co., 93 Pa. Super. 369; Rothberg v. Philadelphia Rapid Transit Co., 97 Pa.Super. 447; Pollock v. Philadelphia Rapid Transit Co., 139 Pa.Super. 256, 11 A.2d 665; Glassman et al. v. Philadelphia Rapid Transit Co., 111 Pa.Super. 58, 169 A. 241; in support of its motion for a directed verdict and its contention that the plaintiff's driver was guilty of contributory negligence.

 These cases are clearly distinguishable on their facts from the instant case.

 In the Rothweiler case, the plaintiff stood between his truck and the street car tracks, in order to inspect a left rear spring. He could have made the inspection by standing behind the truck in a cleared ...


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