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CURRY v. LEHIGH VALLEY TRANSIT COMPANY. (06/28/57)

June 28, 1957

CURRY, APPELLANT,
v.
LEHIGH VALLEY TRANSIT COMPANY.



Appeals No. 163 and 164, Jan. T., 1957, from judgment of Court of Common Pleas of Lehigh County, April T., 1953, No. 26, in case of Peter P. Curry et al. v. Frank A. Napolitano, Trading as Snook's Sandwich Shop, Defendant, and Lehigh Valley Transit Company, additional defendant. Judgment affirmed.

COUNSEL

Paul A. McGinley, for appellant.

William S. Hudders, with him Butz, Hudders, Tallman & Rupp, for additional defendant, appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

[ 389 Pa. Page 581]

OPINION PER CURIAM

This case is affirmed on the able and comprehensive opinion of Judge KENNETH H. KOCH, writing for the court below, as reported in 8 D. & C. 2d 544.

ING OPINION BY MR. JUSTICE MUSMANNO:

No one can know what was in the mind of Edwin Ralph Litzenberger, except perhaps himself, as he stood at the controls of his 40-passenger street car and bowled along over West Broad Avenue on his way from Allentown to Bethlehem on the afternoon of November 7, 1951. While we cannot hazard a guess as to the nature of his thoughts on this particular journey, it is comparatively safe to guess that they were not devoted to traffic moving in the opposite direction on the adjoining motor highway. As he approached a carstop at Grandview Boulevard he noted a truck travelling westwardly, that is, coming toward him on the contiguous cartway. It was about 200 feet away from him travelling at something less than 50 miles per hour. He looked at it, like a sleepy idler on a freight train momentarily opens his eyes to a passing express. Litzenberger looked at the truck and went back to his thoughts, if any. One thing is certain: the truck passed out of his consciousness. He "didn't pay any more attention" to it.

A moment or two later he received a signal from a passenger to stop at Grandview Boulevard. He did so, threw open the door, and, in the immediate instant, there was a crash. The forgotten and ignored truck

[ 389 Pa. Page 582]

    was trampling over the body of the passenger (Mrs. Josephine Curry) whom Litzenberger had mechanically discharged to her fate.

Was he negligent? My colleagues do not think so. They cite The Vehicle Code which says that a motorist must not pass a street car which has stopped for the purpose of discharging passengers. They cite the case of Klingensmith v. West Penn Rys. Co., 279 Pa. 336, and quote: "The legislature having enacted a law forbidding the driver of an automobile to pass a standing street car on the side from which passengers are being received or discharged, the railway company was not bound to anticipate that automobilists would disregard the law."

But they do not quote from the case of O'Malley v. Laurel Line Bus Co., 311 Pa. 251, 254, where we said: "'A common carrier for hire owes to its passengers the highest degree of care and diligence in carrying them to their destination and [in] enabling them to ...


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