traffic. Under Pennsylvania law, by which this case is ruled, there is a long line of cases, of which Sipko v. Pennsylvania Railroad Co., 332 Pa. 106, 2 A.2d 717, is typical, holding that a person who voluntarily assumes a hazard, as where he stands or walks in a railroad or trolley track and is injured as a result thereof, is guilty of contributory negligence as a matter of law. It is likewise held that inattention in an obviously hazardous situation constituted contributory negligence. Clark v. Pittsburgh Railways Co., 314 Pa. 404, 171 A. 886.
Plaintiff, however, relies upon Roberts v. Freihofer Baking Co., 283 Pa. 573, 129 A. 574, and similar cases in which it is held that a person who is doing some temporary work which requires him to be on the outside of his automobile is not guilty of contributory negligence in failing to anticipate that an automobile would graze or strike him. In all of these cases, however, there was ample room for the defendant's automobile to pass the person standing on the outside of the parked car without striking him.
In the case at bar the portion of the highway open to passage by the defendant's truck to the right of the parked truck was at the very best so narrow that anyone standing thereon was in obvious and imminent danger of being struck by the traffic thereon. Where the lane of traffic open is so narrow that vehicles have no room to turn out, the situation is much more closely analogous to the railroad case, and trolley cases, in which the defendant's vehicle is confined to the tracks on or near which the injured person was standing or walking, than to the automobile cases relied upon by the plaintiff, in which the defendant's vehicle had room to turn and avoid striking or endangering the injured person.
In Rothweiler v. Philadelphia Rapid Transit Co., 93 Pa.Super. 369, a seven foot truck was parked on the right side of a street containing trolley tracks. The total space between the curb and the tracks was 8 feet 10 inches. Plaintiff was squatting to the left of the rear wheel at a point where, according to his testimony, he was sure he was clear of the overhang of the trolley. In denying recovery to the plaintiff for the injuries he sustained when struck by a trolley, the court held that he was guilty of contributory negligence in voluntarily placing himself in a position of danger. In its opinion, the Superior Court pointed out that the plaintiff knew of the narrowness of the space between the parked truck and the trolley track and hence it was immaterial whether he miscalculated or crouched lower and further than he had intended. This case is highly analogous to, if not controlling of, the case at bar. Although the decedent in the case at bar was struck by a truck rather than a trolley as in the Rothweiler case, the narrowness of that portion of the highway in which decedent was standing to the right of his truck precluded the defendant's vehicle from turning out to avoid striking the decedent.
Moreover, there is no evidence whatsoever in the case at bar of any reason why the decedent was standing where he was. In the cases relied upon by the plaintiff, the injured party was shown to have been engaged in making repairs to the parked car or some similar justification was offered for his exposing himself to a position of obvious danger. Where no such cause is shown, the injured person is guilty of contributory negligence in voluntarily placing himself in a position of peril. See Bardis v. Philadelphia & Reading Ry., 267 Pa. 352, 109 A. 621; compare also United States v. Philadelphia Transp. Co., D.C., 38 F.Supp. 246.
Plaintiff relies further on the presumption that a person killed in an accident was exercising due care at the time thereof. Michener v. Lewis, 314 Pa. 156, 170 A. 272. There is, however, no room for the application of that presumption where the evidence shows affirmatively physical conditions and all other circumstances of the accident to the contrary. Bernstein v. Pennsylvania Railroad Co., 252 Pa. 581, 97 A. 933; Zotter v. Lehigh Valley R. Co., 280 Pa. 14, 124 A. 284; Neal v. Buffalo, Rochester & Pittsburgh Ry. Co., 289 Pa. 313, 137 A. 453.
Under the Pennsylvania authorities, therefore, the decedent was guilty of contributory negligence as a matter of law and this question should not have been submitted to the jury. In view of this conclusion, it is unnecessary to pass upon the defendant's further contentions that no negligence on his part was shown, and that the plaintiff did not prove herself to be the lawful wife of the decedent, or upon plaintiff's motion for a new trial because of inadequacy of the verdict.
Plaintiff's motion for a new trial is denied. Defendant's motion to set aside the verdict and to enter judgment in his favor is granted.
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