Appeal, No. 64, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, July T., 1947, No. 1571, in case of James F. Callahan v. A. Wishart & Sons Company. Judgment affirmed.
Harold R. Schmidt, with him Rose, Eichenauer, Stewart & Rose, for appellant.
Robert B. Ivory, with him Armin H. Friedman and Evans, Ivory & Evans, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is a trespass action for personal injuries, which has been tried twice and each time the jury has returned a verdict for the plaintiff in the amount of $5,000.00. The defendant filed a motion for judgment n.o.v. which the court in banc dismissed. It is from the dismissal of its motion for judgment n.o.v. that defendant appeals.
Viewed in the light most favorable to the plaintiff, the facts are as follows: defendant's business property, consisting of several buildings, abuts on Railroad
Street, a public street, between 11th and 12th Streets, in the City of McKeesport. One of defendant's buildings has an entrance to the cellar from the front of the building, which is covered by a wooden, slanting trap door extending a few feet from the wall of the building. Some of the buildings on this street are residences. The street runs approximately north and south, parallel to the railroad tracks of the Baltimore & Ohio and is bounded on one side by those tracks. It is bounded on the other side by residences and commercial properties. It has no paved sidewalk and no curb line separating pedestrian walk from the cartway of the street.
Plaintiff called at defendant's lumber yard to purchase some lumber. The foreman with whom he wished to deal was out. Plaintiff sat down in a reclining position on the slanting cellar door with his feet extending about a foot beyond the door. Plaintiff was facing 12th Street, the direction from which traffic approached. As he was talking to a friend, defendant's truck, without any warning, backed up from the opposite direction (i.e. from 11th Street), on the wrong side of the street, for about a distance of about 50 feet. Its rear right wheel ran over plaintiff's feet.
Defendant contends that contributory negligence existed on the part of the plaintiff as matter of law. With this we do not agree. Defendant argues that the plaintiff placed himself in a position of obvious danger when there was a position of safety clearly available to him, i.e., in defendant's office inside the building. This street has no curb line and it is difficult, if not impossible, to determine exactly where the sidewalk ends and the cartway begins. Merely because there is no ascertainable curb line does not indicate that the entire area of this street is a cartway. Many pedestrians walk ...