Appeal, No. 241, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, July T., 1951, No. 1981, in case of McNeal Stewart v. Pittsburgh Railways Company. Judgment affirmed. Trespass for personal injuries. Before MARSHALL, J. Verdict for plaintiff in the sum of $6,750.00; judgment n.o.v. entered for defendant, before MCNAUGHER, P.J., MARSHALL and ADAMS, JJ., opinion by MARSHALL, J. Plaintiff appealed.
Ralph S. Davis, Jr., with him Evans, Ivory & Evans, for appellant.
Con F. McGregor, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff appeals from the entry of judgment n.o.v. in his action of trespass for personal injuries resulting from being struck by defendant's street car.
In such an appeal plaintiff is entitled to the testimony most favorable to him with all reasonable inferences therefrom, and all conflicts in the testimony must be resolved in his favor. But even though the testimony be so taken, it cannot sustain a verdict for this plaintiff.
On a clear, dry day plaintiff was travelling west on Braddock Avenue in the City of Pittsburgh and, for the purpose of wiping his windshield, stopped his automobile with its right side at the curb. He had travelled on this street for a period of years and was well acquainted with it. Some 27 inches from the curb is the track on the private right of way of defendant, on which its street car was proceeding in an easterly direction. Plaintiff stated that prior to being struck, he had looked but did not see the street car approaching. This despite the fact that he had a clear view in that direction for some 500 feet. Nor did he hear any signal of the car's approach. Yet a passenger in his automobile saw the street car when it came into view at a point approximately 500 feet away; and when it was 300 feet away he "yelled ... 'Mack [plaintiff], a street car,' but because there was traffic and noise he apparently didn't hear ..." Plaintiff's testimony showed that, in wiping his windshield, he stood on the curb with his back to the rails for several minutes, that his body was over the line of the right of way, and he was struck on the hip while in this position.
The motorman of the street car, called by plaintiff as his own witness, established that he kept plaintiff
in full view from a distance of 500 feet; that wen he first saw plaintiff he was standing still in front of his automobile; that he kept him in view at all times as he approached; that he began ringing his bell, at intervals, from a distance of a least 300 feet; and that "when I got within ... 100 feet of the automobile he started around the right front of the car ... As I ... got within ... 25 or 30 feet in front of the car, and I rang the bell, ... he had his back toward me going toward the right side ... I slowed the car down to about 15 or 20 miles an hour ... He was looking in the opposite ...