Charles M. Willits, Jay B. Leopold, Philadelphia, for appellant.
Julius Marymor, Michael H. Egnal, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 167 Pa. Super. Page 617]
This is an action in trespass for damages for personal injuries sustained by the plaintiff, Alfonzo Wilkerson, as the result of a collision between the truck which he was driving and defendant's trolley car. The jury returned a verdict for the plaintiff in the amount of $1,000, and after defendant's motion for judgment n. o. v. was refused, it took this appeal.
The accident occurred early in the afternoon of December 3, 1948, a rainy day, as plaintiff was operating his coal truck eastward on the sough rails of the defendant company on Spring Garden Street bridge in Philadelphia, near its intersection with a ramp leading to West River Drive of Fairmount Park. Defendant's trolley car was proceeding westward on the north
[ 167 Pa. Super. Page 618]
rails. The line of traffic ahead of plaintiff's truck consisted of another truck, immediately ahead, and ahead of it, a passenger car. The latter stopped preparatory to making a left turn into the lane down the ramp. When it did so, the truck preceding plaintiff's stopped suddenly. Plaintiff applied his brakes, but as he did so, his truck skidded to the left, on the wet street, into the path of the approaching street car, and the collision occurred, causing the injuries complained of.
Resolving all conflicts in the testimony in favor of appellee, viewing the evidence in the light most favorable to him, and giving him the benefit of all inferences and deductions reasonably to be made therefrom, as we are required to do, Russo v. Pittsburgh Rys. Co., 164 Pa. Super. 396, 64 A.2d 666; Archer v. Pennsylvania R. R. Co., 166 Pa. Super. 538, 72 A.2d 609, we are presented with the following facts as warranted by the evidence and established by the verdict: Plaintiff's truck was proceeding eastward on Spring Garden Street at an estimated speed of 20 to 25 miles per hour when the vehicles preceding it were stopped and the plaintiff applied his brakes. His truck skidded on the wet street and continued for 35 feet, coming to a stop on defendant's north rails at a point 50 to 75 feet west of the ramp leading to West River Drive, at which time the trolley was 'about the middle of the ramp' from 70 to 95 feet away from the stopped truck. The motorman was 'looking northeast * * * around to his right * * * Waving at a Parkguard'. While there is an unusual amount of conflicting testimony, the plaintiff is entitled to have the oral testimony supporting the verdict considered and all the rest rejected. Sorrentino v. Graziano, 341 Pa. 113, 17 A.2d 373; Brizzi v. Pianetti, 165 Pa. Super. 258, 67 A.2d 578.
Appellant contends (1) that plaintiff was contributority negligent and (2) that its motorman was free from negligence under the circumstances.
[ 167 Pa. Super. Page 619]
In support of its contention that the plaintiff was contributorily negligent the defendant cites Reid v. Reading Transit Co., 66 Pa. Super. 101, in which the plaintiff was denied recovery for injuries sustained in a head-on collision with a trolley car on the ground that he was contributorily negligent. There the plaintiff was following two other automobiles, both of which stopped as they approached a street intersection. However, there was nothing in the evidence which would have warranted a finding that the automobiles were stopped suddenly or in an unusual manner. The plaintiff, in order to avert an accident, voluntarily turned his car into the track, intending to pass the cars ahead of him, without looking to see whether a street car was approaching and it was only when he was upon the track that he looked and saw an ...