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January 12, 1959


Appeal, No. 268, Jan. T., 1958, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1955, No. 9177, in case of Charles Rice v. Philadelphia Transportation Company. Judgment affirmed.


Harry A. Takiff, for appellant.

Martin J. Vigderman, with him Freedman, Landy and Lorry, for appellee.

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

Author: Musmanno

[ 394 Pa. Page 456]


Charles Rice, the plaintiff in this case, was injured when his automobile was struck by a street car of the defendant Philadelphia Transportation Company. The jury returned a verdict of $20,000, and the defendant company moved for judgment n.o.v., charging contributory negligence. It also moved in the alternative for a new trial on the ground of excessive verdict. The lower court refused both motions and the defendant appealed.

Reading the record through the eyes of the jury, which resolved all contradictions, doubts, and ambiguities in favor of the plaintiff, the following narrative of fact is authorized. On September 8, 1955, Charles Rice got into his automobile which was parked on the east side of Third Street in Philadelphia and moved out into that thoroughfare, intending to travel in a northward direction. Before leaving the curb he looked in both directions and noted a street car in a stationary position about 150 feet distant, south of Pine Street which intersects Third Street. This one-way highway accommodates three lanes of travel, the middle one occupied by a car track. Heavy automobile traffic was moving north on the west side of the street and many automobiles were parked on the east side. The lane open for Rice was the street car track. The approach from his parked position to the street car lane was one which required Rice to make a wide turn. As he reached the first rail of the car track, he indicated with his hand that he was making a right turn, having already displayed his mechanical signal to the same effect. At this point the street car was still stopped

[ 394 Pa. Page 457]

    below Pine Street taking on and discharging passengers. Thus reassured that he was in no danger from the street car, he moved ahead cautiously - at about one mile per hour.

When his left front wheel reached the outer (or western rail), the street car started forward with an immediate acceleration to 25 miles per hour and continued at that speed with no deceleration at any time. Rice saw himself trapped. He could not go forward because of the heavy auto traffic in the western lane and he could not back up into his former parking space because of the congestion behind him. He stopped dead, hoping and assuming that the motorman would see his plight and allow him time to extricate himself. The street car, however, relentlessly advanced and crashed into the left front of his automobile. When Rice expostulated to the motorman, the latter replied: "I am sorry, fellow, when I saw you it was too late."

It is argued by the defendant company on this appeal that the plaintiff was guilty of contributory negligence in that he voluntarily placed himself in a position of danger. The danger in which the plaintiff placed himself was one every motorist faces when he takes his automobile into street car tracks, but it is a danger of no consequence if motormen observe, as they are required to do, the traffic ahead and have their cars under control. While street cars have a superior right to the use of their tracks, that right is not an exclusive one. They must share it with motorists who also, of course, must observe the safety rules of the highway. But these rules do not require the motorist to do what is superfluous and what is unreasonable. With a street car stopped at least 150 feet away, Rice did not go beyond the bounds of prudence in assuming that he could straighten out his automobile on the car track before the street car could complete its

[ 394 Pa. Page 458]

    operation of discharging and receiving passengers; nor did he do violence to the code of reasonableness, binding on every motorist as well as motorman, for believing that, under the circumstances, the street car would not collidingly overtake him.

The appellant contends that because of the moving traffic in the left lane, Rice should have waited until that traffic abated or, since there was no abatement, he should have retreated to the parking spot from which he had emerged. Neither action was called for, or, in fact, feasible. To have waited until the traffic in the left lane abated might have meant waiting all day. And, to have backed up to the parking spot, with the left traffic lane moving, the street car advancing, and the right lane filled with parked cars would have required a deftness and engineering skill which might have taxed the combined ingenuity of a surveyor's team ...

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