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LITZ v. ZOELLER (05/22/50)

May 22, 1950

LITZ
v.
ZOELLER, APPELLANT



Appeal, No. 69, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, July T., 1947, No. 1149, in case of Edward Litz v. Robert Zoeller. Judgment affirmed.

COUNSEL

Sanford M. Chilcote, with him Dickie, Robinson & McCamey, for appellant.

Ben Paul Jubelirer, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Drew

[ 365 Pa. Page 46]

OPINION BY MR. CHIEF JUSTICE DREW

Plaintiff brought this action in trespass to recover for personal injuries sustained when he was struck by an automobile, driven by defendant, while crossing the intersection of Fifth Avenue and Robison Street, Pittsburgh, at 7 o'clock A.M. on January 3, 1947.A jury returned a verdict for plaintiff in the sum of $3500.00 and judgment was entered thereon after a dismissal of defendant's motion for judgment n.o.v. This appeal followed.

The locus in quo is an unusual right angle intersection. Fifth Avenue runs generally east and west and is traversed by double street car tracks. At the Robinson Street intersection Fifth Avenue, as it extends westwardly, curves off sharply to the left from a straight run of approximately a city block and proceeds in a southwestwardly direction for a short distance before resuming its west running course. Robinson Street enters Fifth Avenue from the north a very short distance west of the commencement of this curve. Although it does not cross Fifth Avenue, there is a pedestrian crossing from the north curb of the intersection to the south side of Fifth Avenue. The street car tracks follow the curve of Fifth Avenue by closely paralleling the south curb line. The north curb of Fifth Avenue, however, continues in a straight line to the eastern edge of Robinson Street. From the western edge of Robinson Street the north curb line turns gradually to the left until it is once again parallel to the street car tracks. This has resulted in a paved pedestrian crossing of considerable

[ 365 Pa. Page 47]

    width. From the north curb line of Fifth Avenue at Robinson Street to the nearest rail of the curving westbound tracks is a distance of 70 feet. The width of the tracks is 15.2 feet and from the south rail of the eastbound track to the southern curb line of Fifth Avenue is 34 feet. The total distance of the crossing at the scene of the accident is therefore 119.2 feet from curb to curb.

At 7 o'clock on the morning of January 3, 1947, defendant was driving west on Fifth Avenue at a speed of 45 to 50 miles per hour. Plaintiff had entered the pedestrian crossing at the Robinson Street intersection and had proceeded to within approximately 20 feet of the nearest rail of the west bound tracks when he saw defendant's automobile for the first time approaching him from a distance of 300 to 350 feet. Although the car did not show any lights the visibility was such that plaintiff experienced no difficulty in seeing it. Plaintiff continued to cross, looking alternately east and west, but paying particular attention to the car of defendant as it came towards him from the east. When he reached the middle of the westbound street car tracks plaintiff, realizing that defendant was following the course of the tracks and was about to strike him, broke into a run in a futile attempt to escape. Defendant's efforts to stop were unavailing and his car struck plaintiff.

In contending that plaintiff is guilty of contributory negligence as a matter of law, defendant has called our attention to Watson v. Lit Brothers, 288 Pa. 175, 135 A. 631, and Schroeder v. Pittsburgh Rys. Co., 311 Pa. 398, 165 A. 733, which are representative of a number of cases cited in his brief. These however are clearly distinguishable on their facts from the instant case. In Watson v. Lit Brothers, supra, this Court, citing Grein v. Gordon, 280 Pa. 576, 124 A. 737, as authority for the proposition that a ...


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