Appeal, No. 61, April T., 1959, from judgment of Court of Common Pleas of Allegheny County, April T., 1954, No. 2676, in case of George D. Faris, Jr. v. Pittsburgh Railways Company. Judgment reversed.
Con F. McGregor, for appellant.
Martin E. Geary, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 189 Pa. Super. Page 601]
Plaintiff, George D. Faris, Jr., sued the defendant, Pittsburgh Railways Company, in an action of trespass for damages sustained in a collision between an automobile driven by the plaintiff and a streetcar owned by defendant. The jury returned a verdict in favor of the plaintiff in the amount of $2,500.00. The defendant appeals from the judgment entered on the verdict after the dismissal of its motion for judgment n.o.v.
Considering the facts and inferences therefrom most favorably to the plaintiff, as we must, we find that on Saturday, December 5, 1953, at about 8:40 a.m. on a clear day, the surface of the highway being dry, the plaintiff was operating his automobile in a southerly direction on Route 19 in the Borough of West View, Allegheny County. At a point on this route streetcar tracks of defendant cross in a northeasterly and southwesterly direction. On Route 19, at the northerly side of the tracks and located approximately 90 feet therefrom,
[ 189 Pa. Super. Page 602]
is a signal pole on which are placed a railroad crossing sign, two lights which when activated flash alternately, each one a red warning sign or light, and four lights in perpendicular arrangement which remain constantly on while the two warning lights are activated and which spell out the word "Stop." The two warning lights and the four lights in perpendicular arrangement remain unlighted until they are activated by the approach of a streetcar at a point 399 feet southwest of the highway. When the streetcar activates the lights, traffic on Route 19 is on notice of an approaching streetcar. The approach of the streetcar from the southwesterly side of Route 19 is on an ascending grade and through a wooded area. It is only when the streetcar has practically arrived at the edge of the concrete highway that it can be seen by traffic traveling in a southerly direction, the direction plaintiff was traveling on the morning of the accident. The plaintiff was approaching the crossing at a speed which he testified was between 20 and 40 miles per hour and at another time testified that he could have been traveling 35 miles an hour and at another time testified that he could have been traveling at 30 miles per hour and that "It could be off five or ten either way." He testified there were no lights operating or activated on the signal pole and that he continued his progress at the same rate of speed that he had been maintaining before he approached the crossing. According to his own testimony he was between 70 to 90 feet away from the intersection when he first saw the streetcar emerging from the wooded area and from behind a building located at the southeasterly corner of the intersection. Hidden from view because of the woods and building, the streetcar could not have been observed before that instant. At this time the front of the streetcar was approximately at the edge
[ 189 Pa. Super. Page 603]
of the concrete roadway of Route 19. Plaintiff testified that as soon as he saw the streetcar he swerved to the left in an attempt to avoid a collision but the front end of the streetcar struck the right side of his car at a point west of the center line of the highway. There was no other traffic traveling ahead of plaintiff and he testified that he noticed that traffic approaching the crossing in a northerly or opposite direction was stopped at the time he swerved to the left.
We are of the opinion that the plaintiff was guilty of contributory negligence as a matter of law. Contributory negligence may be declared as a matter of law only in cases so clear that there is no room for fair and sensible men to differ in their conclusions from the ...