Isadore H. Bellis, Robert M. Bernstein, Philadelphia, for appellant.
H. Rook Goshorn, Jay B. Leopold, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 593]
This is an action in trespass to recover damages for personal injuries sustained by the plaintiff when he was struck by defendant's trackless trolley (or bus) at the intersection of 16th Street and Ridge Avenue in the city of Philadelphia. The jury returned a verdict in favor of the plaintiff in the amount of $900, defendant's motion for judgment n. o. v. was granted by the court below on the ground that the plaintiff was contributorily negligent, and plaintiff took this appeal.
The verdict for the plaintiff is a finding that he was free from contributory negligence. Kulka v. Nemirovsky, 314 Pa. 134, 170 A. 261; Olson v. Swain, 163 Pa. Super. 101, 60 A.2d 548. The question of his contributory negligence cannot be treated as one of law unless the facts and the inferences from them are free from doubt. If there is doubt as to either, the case is for the jury. Chidester v. City of Rittsburgh, 354 Pa. 417, 47 A.2d 130; Coolbroth v. Pennsylvania R. R. Co., 209 Pa. 433, 58 A. 808. He cannot be held contributorily negligent as a matter of law unless the evidence of it is clear and unmistakable. Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194; Schildnecht v. Follmer
[ 167 Pa. Super. Page 594]
Trucking Co., 330 Pa. 550, 199 A. 220; Vunak v. Walters, 157 Pa. Super. 660, 43 A.2d 536.
The plaintiff, all conflict having been resolved in his favor, is entitled to have the evidence supporting his verdict considered and all the rest rejected. Sorrentino v. Graziano, 341 Pa. 113, 17 A.2d 373; Pinto v. Bell Fruit Co., Inc., 148 Pa. Super. 132, 24 A.2d 768. Reviewing the evidence in the light most favorable to him and giving him the benefit of every doubtful or obscure fact and the reasonable inferences that a jury might deduce therefrom, as we are required to do, McCreery v. Westmoreland Farm Bureau Co-operative Ass'n, 357 Pa. 567, 55 A.2d 399, the following facts are established by the verdict:
The intersection of Ridge Avenue, which runs approximately east and west, and 16th Street, running generally north and south, is controlled by traffic lights. A taproom is located at the northeast corner of the intersection and a drug store at the southeast corner. The accident occurred during the morning of October 9, 1944, a clear day, as plaintiff was crossing Ridge Avenue from north to south on the east footwalk of 16th Street. Before leaving the north curb of Ridge Avenue, he looked east and saw defendant's trackless trolley about 110 feet away from the intersection, and approaching it. The signal light then being in favor of traffic on 16th Street, the plaintiff, without again looking in the direction of the trolley but watching the light which continued green, proceeded to walk across the intersection, passing in front of an automobile travelling west on Ridge Avenue, which had been stopped for the red light governing traffic travelling east and west on Ridge Avenue. The defendant's trolley swerved around this automobile, ran into the intersection, and struck the plaintiff when he was approximately in the center of the street.
[ 167 Pa. Super. Page ...