Appeals, Nos. 52 and 53, and 66 and 67, March T., 1951, from judgments of Court of Common Pleas of Allegheny County, July T., 1947, No. 2648, in case of Frank Guca, Admr., et al. v. Pittsburgh Railways Co. and Borough of Bellevue. Judgment against Pittsburgh Railways Co. affirmed; judgment against Borough of Bellevue reversed.
D. H. McConnell, for Pittsburgh Railways Company, appellant.
J. Roy Dickie, with him Dickie, McCamey, Chilcote, Reif & Robinson, for Borough of Bellevue, appellant.
J. Wray Connolly, with him A. W. Henderson, W. S. Moorhead, Jr. and Moorhead & Knox, for appellees.
Before Drew, C.j., Stern, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Forest Avenue in the Borough of Bellevue runs in a northerly and southerly direction. Double street car tracks of the Pittsburgh Railways Company are located in the middle of the avenue which, proceeding in a northerly direction, is paved from curb to curb up to and including its intersection with Maryland Avenue. North of Maryland Avenue there is no paving between the rails of the street car tracks but the paving of the street continues on both sides of the tracks. At about 1 a.m. on July 14, 1946, Frank R. Guca was driving his father's automobile northerly on Forest Avenue, straddling the northbound trolley track. After he crossed
Maryland Avenue, his left wheels encountered the depressed area between the rails of the trolley track and the rough ballast and exposed ties caused the car to jolt along until its motor stalled and its lights went out. After several attempts by Guca to remove the automobile from the trolley track, he saw a northbound trolley car approaching. Standing between the rails beside the left front door of the automobile, he endeavored to flag the motorman by waving his arms. When it was evident that the trolley was not going to stop in time to avoid a collision, he ran from it in a northerly direction alongside the automobile. The trolley car ran into the automobile, threw it off the tracks to the right, and then ran over and killed Guca.
Frank Guca, the father of the deceased, instituted suit against the railways company and the borough, seeking as administrator of his son's estate damages under death and survival actions and in his own right to recover damages to his automobile. A jury rendered verdicts in favor of the plaintiff in all of the actions totaling $9,898.28. The defendants made no motions for new trial, but filed motions for judgment non obstante veredicto. The court refused the motions and these appeals are from the judgments entered on the verdicts.
Both the railways company and the borough contend that the deceased, Frank R. Guca, was guilty of contributory negligence as a matter of law. The borough further contends that plaintiff failed to establish any negligence on its part imposing liability. Negligence on the part of the motorman of the trolley car is practically admitted by the railways company. At least no complaint is made of the jury's finding in this regard.
Considering the facts and all reasonable inferences to be deduced therefrom most favorably to the plaintiff as we are ...