Appeals, Nos. 227, 228 and 242, Jan. T., 1957, from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1953, No. 6212, in case of W. Stanley Kite v. Ellis H. Jones and Yellow Cab Company of Philadelphia, Albert Renick, McCloskey & Co., and City of Philadelphia. Judgment reduced and, as modified, affirmed.
James J. Leyden, with him Josephine H. Klein and Schnader, Harrison, Segal & Lewis, for defendants, Jones and Yellow Cab Company, appellants.
Edward I. Weisberg, with him David N. Feldman, for defendant, Renick, appellant.
John B. Martin, with him Duane, Morris & Heckscher, for plaintiff, appellee.
F. X. McClanaghan, with him Cogan & McClanaghan, for defendant, McCloskey & Co., appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff, a pedestrian, was an innocent victim of a collision between a taxicab of the Yellow Cab Company and an automobile driven by Albert Renick, at the intersection of 16th Street and Pennsylvania Boulevard, Philadelphia. Plaintiff sued the Yellow Cab Company and its driver, Ellis H. Jones. Yellow Cab Company brought in Albert Renick as additional defendant, and he in turn brought in McCloskey and Company as additional defendant, and McCloskey and Company in turn joined the City of Philadelphia as additional defendant. The City filed preliminary objections which were sustained, and the complaint was dismissed as to the City.
The trial Judge, at the conclusion of the testimony, entered a non-suit on behalf of McCloskey and Company.
The jury rendered a verdict in favor of plaintiff in the amount of $40,000 against Yellow Cab Company, Jones and Renick. Yellow Cab Company and Jones thereafter filed a (separate) motion for judgment n.o.v. and for a new trial, assigning, among other reasons for a new trial, the Court's refusal to take off the non-suit. Defendant Renick also filed a motion for a new trial, alleging, inter alia, that the verdict was excessive. All of these motions were dismissed. Appeals were taken by each of the above mentioned defendants from the judgment on the verdict for plaintiff against the defendants in the sum of $40,000.
Plaintiff on the evening of April 6, 1953, at about 8:45 p.m., was walking north on the west side of 16th Street. It was a dark rainy night. After looking for traffic at the intersection, plaintiff proceeded to cross Pennsylvania Boulevard. When he was almost across the street he was struck by Renick's automobile, which in turn had been struck by the Yellow taxicab driven by Jones. The impact of the taxicab collision with Renick's car swung the rear of Renick's car in a semicircle, first northward, then westward, when it struck and injured Kite who was in the west cross walk, a few feet from the north curb of Pennsylvania Boulevard. The testimony by the driver of each car differed widely, as so often happens in these cases. 16th Street at the time of the accident was 26 feet from curb to curb. However, a high fence which had been erected by McCloskey and Company protruded into 16th Street on the east side (near the southeast corner of the intersection) so that the street at that point was only 17 feet wide. Pennsylvania Boulevard is 38 feet wide and is a two-way street.
Plaintiff called as for cross-examination Renick. He testified that he was driving his car on the north side (correct side) of Pennsylvania Boulevard in a westerly
direction. He stopped his vehicle at the northeast corner near a stop sign; looked to his left and saw no vehicles or lights so he proceeded to the street line where he stopped again. He testified that at this point he saw no vehicles or lights to his left. He then went forward and when the window of his car came to the line of the fence or just beyond it, he looked left again and at that point he saw blurry lights about 100 feet from his car. Renick then continued onward at 5 or 6 miles an hour for about 15 feet, and when his car was almost completely across the trolley tracks on 16th street the left rear side of his car was struck by the left front fender of the Yellow taxicab. He claimed that his vehicle was on its right lane (right-hand side) of Pennsylvania Boulevard.
Plaintiff also called as for cross-examination Jones, the driver of the Yellow Cab Company. He testified he was operating his taxicab north on 16th Street and was straddling the east rail of the trolley tracks on 16th Street; that he was driving at a speed of 20 miles an hour and continued into the intersection without reducing his speed. Despite the rain he said he had a clear vision in all directions for 60 or 70 feet, except, of course, to the extent that the McCloskey fence limited his vision of traffic to his right on Pennsylvania Boulevard. When his taxicab reached the southeast corner of 16th Street and Pennsylvania Boulevard he saw for the first time Renick's car coming toward him from the right. Jones testified he was 6 feet north of the southeast corner of 16th Street and Pennsylvania Boulevard when he first saw Renick's car. At one point he said he did not see Renick's car until it was right in front of him; at another point he testified that he did not see Renick's car at all. He also testified that he saw Renick's face looking toward him and at that time he was about to go across the intersection.
Jones further testified that Renick's car was on the left instead of the right side of Pennsylvania Boulevard, and that if it had been on its right side of the street he would have been able to see it 35 feet before the accident. He also testified that when his taxi stopped after the collision, its front end extended only 6 feet north of the McCloskey fence. Although the testimony showed that Renick's lights were on, Jones did not see any lights of Renick's car.
A jury can, of course, believe all or part of or none of the testimony of each witness. Without further discussion of the evidence, it is clear that the jury could have found that both Jones and Renick were guilty of negligence and consequently the lower Court properly dismissed the (respective) motions for a judgment n.o.v.
McCloskey and Company's fence was 8 to 10 feet high. On February 10, 1953 McCloskey received a letter from Deputy Commissioner of Traffic Leslie Williams, which notified him that the fence was so high as to create an unnecessary traffic hazard and that the fence should be lowered to the eye level of a person sitting in a passenger car on 16th Street and for a distance of from 50 to 75 feet on Pennsylvania Boulevard. Even without this actual notice, a jury could reasonably have found from the height of the fence and the other facts and circumstances of the case that McCloskey and Company was guilty of negligence in erecting such a high fence at that intersection. Nevertheless, we conclude from the evidence that the negligence of McCloskey and Company was not a proximate cause of the accident and that a judgment of non-suit was properly entered as to it: Listino v. Union Paving Co., 386 Pa. 32, 124 A.2d 83; DeLuca v. Manchester Laundry and Dry Cleaning Co., Inc., 380 Pa. 484, 112 A.2d
; Klimczak v. 7-Up Bottling Co., 385 Pa. 287, 122 A.2d 707.
In Listino v. Union Paving Co., 386 Pa., supra, the Court said (pages 36-39): "It is hornbook law that plaintiff has the burden of proving that defendant's negligence was the proximate cause of the accident: DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa. 484, 112 A.2d 372; Helm v. South Penn Oil Co., 382 Pa. 437, 114 A.2d 909; Lanni ...