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SMITH v. PHILADELPHIA TRANSP. CO. (01/12/51)

January 12, 1951

SMITH
v.
PHILADELPHIA TRANSP. CO.



COUNSEL

Thomas Boylan, Philadelphia, for appellant.

Samuel K. White, Jay B. Leopold, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 168 Pa. Super. Page 169]

DITHRICH, Judge.

In this action in trespass to recover for property damage and personal injuries alleged to have been caused by the negligent operation of a street car by defendant's motorman, the jury returned a verdict for defendant. Plaintiff's motion for a new trial was dismissed and judgment entered on the verdict. This appeal followed.

Plaintiff testified that on November 30, 1946, at about 9:30 a. m., he was driving his automobile south on 36th Street in the City of Philadelphia. He stopped at the intersection of 36th Street and Woodland Avenue and then turned left into Woodland, a diagonal street running northeast and southwest on which defendant operated a double line of street railway tracks. Plaintiff, driving very slowly, proceeded upon or along the northeast bound track until he reached Locust Street, an east and west street which joins Woodland on the west, about 100 feet northeast of 36th Street. He intended to turn left into Locust, but opposing traffic forced him to stop. When the way was clear he proceeded to make his turn. At that moment defendant's trolley car coming rapidly from the rear crashed into the left rear of plaintiff's automobile.

Defendant's version of the accident, given by the operator of the trolley car and substantially corroborated by three disinterested witnesses, passengers on the car,

[ 168 Pa. Super. Page 170]

    varies materially from the account given by plaintiff. According to the defense, the street car had stopped on Woodland Avenue at 36th Street to pick up and discharge passengers. Plaintiff turned into Woodland Avenue from 36th Street, passing directly in front of the street car, crossed the track and then proceeded very slowly along the right-hand curb, as if looking for a place to park. The motorman started up and had reached a speed of 20 m. p. h. when plaintiff, then 12 to 15 feet in front of the street car, suddenly pulled away from the curb without warning and cut across the track. The collision was inevitable.

One defense witness was not certain whether plaintiff's car had completely cleared the track or was still partly on it as it preceded the street car along Woodland Avenue. She emphasized, however, that plaintiff did turn in front of the street car. Whether the turn was completely or only partly across the track was what she could not clearly recollect.

The trial judge charged the jury: '* * * if all you had were the story of the plaintiff, I do not see why you should have any difficulty with the case, because if he got on there, if he was proceeding slowly, using the highway as he was, and was about to make a left-hand turn, and a trolley car bears down on him and does not give him an opportunity to make that turn and crashes into the rear, then I think it was negligent conduct, although you may disagree with me.'

Then, after reviewing the motorman's testimony, he stated: 'I must say to you that I do not see why you should have any difficulty with this case if that is what happened. Here is a man who is operating a trolley car, he sees a car pulling to his right about to park, and he starts and goes * * * and all of a sudden a man pulls on the track in front of him, only about ten to fifteen feet ...


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