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MCCLINTOCK v. PITTSBURGH RAILWAYS COMPANY (11/10/52)

November 10, 1952

MCCLINTOCK
v.
PITTSBURGH RAILWAYS COMPANY, APPELLANT



Appeal, No. 192, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, July T., 1949, No. 2428, in case of Alma S. McClintock v. Pittsburgh Railways Company, now in the hands of W. D. George et al., Trustees. Judgment affirmed; reargument refused November 28, 1952.

COUNSEL

James A. Geltz, with him Prichard, Lawler, Malone & Geltz, for appellant.

James P. McArdle, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 371 Pa. Page 541]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Defendant has appealed from the refusal of the learned court below to grant its motions for judgment n.o.v. and for a new trial after a jury returned a verdict for plaintiff in the amount of $18,000. The action was in trespass for damages sustained by plaintiff when her automobile was struck by a street car driven by defendant's employe.

Defendant asserts that plaintiff was guilty of contributory negligence as matter of law and demands judgment n.o.v. In considering this point, it is fundamental that we must take the version of the testimony most favorable to plaintiff and ignore contrary inferences which the jury might have drawn from defendant's evidence: Davis v. Feinstein, 370 Pa. 449, 88 A.2d 695. From the testimony of plaintiff and her witnesses,

[ 371 Pa. Page 542]

    the jury would have been justified in believing that the collision occurred in the following manner: about 6:30 p.m. on April 28, 1949, plaintiff was traveling east on Fifth Avenue in the city of Pittsburgh, intending to turn north on Dithridge Street and stop at Webster Hall Hotel. It was still daylight. Plaintiff stopped at the intersection, signaled for a left turn, and looked for traffic in all directions. She observed defendant's westbound street car situated beyond the entrance to the Cathedral of St. Paul at the corner of Craig and Fifth Avenue, which is two hundred sixty-two feet from the intersection at which plaintiff was turning. Plaintiff turned her car from its position astride the inside rail of the eastbound track and immediately noticed that pedestrians walking across Dithridge Street from the Cathedral toward Webster Hall were blocking her path. She proceeded across the Westbound track at a very slow rate of speed in order to give the pedestrians time to pass. Plaintiff looked once again in the direction of the oncoming trolley car, saw it about sixty or seventy-five feet away, and almost immediately thereafter was struck by it. At the time of impact, the front wheels of her automobile had already passed the last car rail although the body of her automobile was still across the track.

Under these circumstances, it cannot be said that plaintiff was testing an obvious peril when she attempted the turn in the face of the approaching trolley car, even though the latter was traveling at a high rate of speed. It may well have appeared to a reasonable person that she had ample time to complete the turn before the street car traversed the distance of approximately three hundred feet that it had to travel before reaching the point where she was beginning her turn. This is far different from the cases relied on by defendant. For instance, where the testimony of the

[ 371 Pa. Page 543]

    plaintiff's own witnesses disclosed that her deceased husband had attempted to cross on a bicycle in front of a rapidly approaching street car which was only fifty to seventy-five feet distant, we held that defendant was entitled to binding ...


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