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January 21, 1958


Appeals, Nos. 199, 200, and 201, April T., 1957, from judgment and orders of Court of Common Pleas of Allegheny County, Jan. T., 1954, No. 2949, in cases of Bernard Levine v. Pittsburgh Railways Company, Esther Levine v. Pittsburgh Railways Company et al.; and Cylvia Levine v. Pittsburgh Railways Company et al. Judgment and orders affirmed.


H. N. Rosenberg, with him Rosenberg and Rosenberg, for appellants.

Earl W. Brieger, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 185 Pa. Super. Page 400]


Cylvia, Esther, and Bernard Levine instituted an action in trespass against the Pittsburgh Railways Company, hereinafter called the Company, to recover damages resulting from a collision between Cylvia's automobile and the Company's trolley. Cylvia was the bailor of the car, Bernard was the operator, and Esther, Bernard's wife, was a passenger. Upon petition of the Company, the parties plaintiff were severed, and Bernard was joined as an additional defendant in the actions of Cylvia and Esther. At the trial, the jury returned a verdict for Bernard in his individual action, and for Cylvia and Esther against the Company only. The court en banc entered judgment n.o.v. in Bernard's action, and granted a new trial in the other two actions. These appeals followed.

The collision occurred on Sunday, March 8, 1953, at about four o'clock in the afternoon. The weather was clear and visibility was good, but the streets were slushy because of a recent snow. Bernard and Esther were traveling east on Forbes Street between Murray and Shady Avenues. Their original intention was to visit Esther's mother, but they decided instead to go to a movie downtown. Forbes Street is sufficiently wide at that point to accommodate two trolley tracks, with a traffic lane and a parking lane on either side of the tracks. Bernard testified that he pulled over to the curb on the south side of Forbes Street and stopped the car for thirty to sixty seconds. Immediately opposite, on the north side of Forbes Street, there was a driveway leading to a parking lot in the rear of Joseph's

[ 185 Pa. Super. Page 401]

Steak House. Bernard put on his left turn signal and looked in the side view mirror preparatory to crossing the street into the driveway. He noticed the Company's trolley approaching from the west, coming through the intersection of Forbes and Murray at a distance of approximately two hundred feet. He put the car in first gear and proceeded to make a left turn. When he reached the eastbound track, he stopped the car. At that time he noticed the trolley was approximately one hundred fifty feet to his left with no intervening traffic. There was no traffic approaching from his right. He thereupon continued to cross the street. When he reached the westbound track, he stopped again, with the car then broadside on the eastbound track, and looked first to his right and then to his left. At that time the trolley was approximately forty feet away, "and I got excited and I stepped on the gas, tried to get it out of there, but I had chains on. I couldn't move fast. It was slushy. I couldn't get out of the way". The operator for the Company testified that Bernard suddenly, and without any signal, attempted to make a "U" turn*fn1 directly in front of the trolley. The operator was corroborated by the testimony of three passengers in the trolley, and also by a city policeman who testified that Bernard stated after the collision that he was in the process of making a "U" turn.

Viewing the testimony in the light most favorable to the plaintiff, Harris v. DeFelice, 379 Pa. 469, 109 A.2d 174, we agree with the court below that Bernard was guilty of contributory negligence. While contributory negligence should be declared as a matter of law only when it is so closely revealed that fair and reasonable persons could not disagree as to its existence,

[ 185 Pa. Super. Page 402]

    here. Furthermore, the granting of a new trial in the actions of Cylvia and Esther was entirely proper. Since Bernard was negligent as a matter of law, recovery by Cylvia and Esther against the Company alone cannot be permitted. As pointed out by the court below, "it becomes clear that any verdict against the Pittsburgh Railways Company alone would not only be inconsistent with the finding that Bernard Levine was negligent but it certainly follows that such a verdict is against the weight of the evidence".


Judgment and orders affirmed.

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