Appeal, No. 160, Jan. T., 1949, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1946, No. 946, in case of Helen A. Esposito, Admrx., Estate of Dominick Esposito v. Philadelphia Transportation Company. Judgment affirmed; reargument refused March 27, 1950.
Joseph P. Breslin, with him Vincent P. Desmond and Thomas Boylan, for appellant.
Harold Scott Baile, with him Jay B. Leopold and Bernard J. O'Connell, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE PATTERSON
Helen A. Esposito, widow and administratrix of Domenick Esposito, deceased, instituted this action for damages occasioned by the death of her husband, who was killed when an automobile driven by him collided with a street car of Philadelphia Transportation Company. The trial judge granted the request of Philadelphia Transportation Company for binding instructions and directed a verdict in its favor. Mrs. Esposito moved for a new trial which was refused, and she has appealed.
The time of the accident was September 21, 1945, at about 6:30 P.M. daylight saving time, and the place was the same as that of the accident in Leaman Transportation Corporation v. Philadelphia Transportation Company, 358 Pa. 625, 57 A.2d 889, on the Industrial Highway running from Chester to Philadelphia, in Tinicum Township, Delaware County, where it is crossed by the double trolley tracks of appellee. The highway runs in an east-west direction, consists of two paved strips, each 24 feet in width, separated by a two foot wide divisor, and is crossed by appellee's trolley tracks, which run southwest-northeast at a thirty degree angle. To warn westbound (Philadelphia to Chester) traffic, appellee maintains signal lights, consisting of one amber and two red blinker type lights, which overhang the highway, at a point 44 feet east of the eastern rail of the northbound track, from an upright to which are also affixed two warning signs, with letters made of reflector glass, reading "2 TRACKS" and "STOP ON RED SIGNALS". The amber light, visible only from the direction of oncoming traffic, is lighted at all times, except when a trolley car is approaching or occupying the crossing. On the approach of a trolley, when it reaches a point 143 feet south of the highway, an automatic electric "tripper" device attached to the tracks turns off the amber light and activates the red blinker lights, which are visible from both directions, causing
them to flash or blink alternately until the trolley car completely passes over the highway. On the opposite side of the tracks, 47 feet from the west rail of the southbound tracks, there is a similar device to warn eastbound (Chester to Philadelphia) traffic.
Esposito was driving his automobile from Philadelphia toward Chester at the time, traveling on the northerly side of the highway, and appellee's trolley car was traveling from Chester toward Philadelphia, on the easterly or northbound tracks. It was daylight and the weather was clear and dry. Appellant's sole witness as to the manner of occurrence of the accident was one Furillo, who had boarded the trolley in Chester and was riding near the rear of the car on the right-hand side. He testified that the trolley car was being operated at a speed of 35 to 40 miles per hour as it approached the highway, that when it reached the south edge of the highway he observed Esposito's automobile at the Reading Railroad Company's tracks, which also cross the highway a distance of 166 feet east of appellee's tracks, and that the automobile was approaching the crossing at a speed of 40 to 50 miles per hours. The automobile continued past the warning signs and the flashing red lights, without any abatement of its speed or attempt to turn to the right or left, and collided with the left front corner of the trolley car, "right on the third lane", when it was approximately three-quarters of the way across the highway. The automobile caromed off the trolley car, breaking off a highway post, and came to rest against a steel telegraph pole approximately 90 feet away. The street car came to a stop just clear of the north side of the highway. Furillo testified that the brakes of the trolley were not applied and that an examination made by him following the accident revealed that there was no sand on the tracks and that they were not scorched. Appellant testified that her husband had driven over the crossing twice daily for a
period of three months prior to the day of the accident, and he was therefore entirely familiar with it ...