Appeal, No. 316, Jan. T., 1954, from judgment of Court of Common Pleas No. 5 Of Philadelphia County, March T., 1953, No. 8103, in case of James J. Campbell v. Maurice Balis. Judgment affirmed.
Ralph S. Croskey, with him Croskey & Edwards, for appellant.
Henry D. O'Connor, with him Joseph W. O'Connor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On his way home from his day's work, James J. Campbell, school janitor, alighted from a street car at the northeast corner of Midvale Avenue and Henry Avenue in Philadelphia and waited to cross Midvale
Avenue in order to board at the southwest corner of the intersection a bus which would take him to his home in Roxborough. Midvale Avenue runs east and west and measures 40 feet from curb to curb, with 20 foot sidewalks. It accommodates double car tracks, separated by an empty space known as the "dummy" 4 1/2 feet wide. Henry Avenue runs north and south with a width of 60 feet above Midvale Avenue and 50 feet south of Midvale.
When the traffic light beckoned southbound traffic to proceed, Campbell started across Midvale Avenue, traversed the first street car track, passed over the "dummy" and the second track, and was about to mount the sidewalk when the automobile of the defendant, in defiance of a red light, dashed through the crossing and struck the plaintiff with such force as to throw him over the top of the car. The plaintiff landed on his head and sustained serious injuries.
In the resulting lawsuit the jury returned a verdict in his favor. The defendant moved for judgment n.o.v., which was refused, and this appeal followed.
The defendant contends that the plaintiff was guilty of contributory negligence as a matter of law because he stated that he did not see the defendant's automobile until just before it struck him. This, the defendant argues, shows that the plaintiff was careless and inattentive. In support of his position, defendant's counsel cites the case of Harris v. Commercial Ice Co., 153 Pa. 278, where this Court reversed a judgment entered in favor of the plaintiff because of his contributory negligence. But in that case the plaintiff was struck by an ice wagon the instant he stepped off the curb. ...