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KURTZ v. PHILADELPHIA TRANSPORTATION COMPANY (01/05/59)

January 5, 1959

KURTZ
v.
PHILADELPHIA TRANSPORTATION COMPANY, APPELLANT.



Appeal, No. 264, Jan. T., 1958, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1952, No. 3598, in case of Andrew C. Kurtz v. Philadelphia Transportation Company. Judgment affirmed.

COUNSEL

Bernard J. Smolens, for appellant.

John J. O'Brien, Jr., and Francis X. O'Brien, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Musmanno

[ 394 Pa. Page 325]

OPINION BY MR. JUSTICE MUSMANNO.

The plaintiff in this case, Andrew C. Kurtz, was seriously injured when the 1951 Mercury automobile which he was driving was struck by a street car of the defendant Philadelphia Transportation Company. The jury returned a verdict for the plaintiff and the defendant has appealed, asking for judgment n.o.v., or, alternatively, a new trial, alleging errors in the judge's charge.

Since the plaintiff won the verdict we are required to peruse the pages of the record under a lamp which resolves all doubts, contradictions and ambiguities in favor of the plaintiff and obliterates all inferences adverse

[ 394 Pa. Page 326]

    to him. We do this because the jury, the factfinding tribunal, has so interpreted the evidence and, in the absence of any proof of bias, caprice, or prejudice on their part, their conclusions are binding.

With this criterion in mind, we find that the following misfortune of the streets occurred December 25, 1950, on Rising Sun Avenue in Philadelphia, close to a point where that thoroughfare crosses Tacony Creek and then heads in a northeastward direction. At about 7:30 of that Christmas morning, Kurtz was moving northwardly on the aforesaid Rising Sun Avenue which has two street car tracks in its center, when his Mercury, after a few admonitory jerkings, sputterings and gaspings, stalled just where Rising Sun Avenue, after spanning Tacony Creek, makes a rather sharp turn to the right and climbs a ten per cent grade toward Adams Avenue which intersects it.

The Mercury, which had been traveling in the right-hand or northbound car track, drifted toward the center of the street and eventually stopped within what is popularly referred to as the "dummy," the space between the two car tracks, with its nose extending over to the left or southbound car track. Kurtz worked with the obstreperous engine, got it started once more, and endeavored to get back to the northbound track. But still all was not well. The engine lagged again. The car moved enough to get its nose pointed toward the northbound track, but its left flank remained exposed to traffic passing on that side.

At this moment Kurtz perceived 400 feet away on the southbound track a highspeed, streamlined street car swaying toward him at the rate of 40 miles per hour. He urged his Mercury forward, its wheels made a few determined turns, but the dying engine could carry it only ten feet while the trolley car relentlessly bowled forward over the intervening 400 feet without

[ 394 Pa. Page 327]

    diminution of speed. The inevitable occurred. The front of the street car smashed into the left center of the Mercury, and, amid the resulting broken bones, spurting blood, and twisted metal, a lawsuit was born.

The appellant defendant company contends that the verdict of the jury should be reversed on the ground that the plaintiff was guilty of contributory negligence, as a matter of law, but neither in appellant's brief or in oral argument was any such contributory negligence made apparent. Contributory negligence is not a shadow falling from the events of the main transaction; it is not a vapor rising from the impact and fracas of a collision; it is not a mere inference or assumption to be breathed in with the air like fumes rising from spilled gasoline in the street. Contributory negligence is a substantive ...


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