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CUNEO v. PHILADELPHIA TRANSPORTATION COMPANY (01/02/62)

January 2, 1962

CUNEO
v.
PHILADELPHIA TRANSPORTATION COMPANY, APPELLANT.



Appeal, No. 388, Jan. T., 1961, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1959, No. 3689, in case of Irene Cuneo v. Philadelphia Transportation Company. Judgment affirmed.

COUNSEL

Philip Price, with him Thomas C. McGrath, Jr., Bernard J. Smolens, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

Eli N. Donsky, with him Leon Katz, and Donsky and Katz, for appellee.

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

Author: Musmanno

[ 405 Pa. Page 534]

OPINION BY MR. JUSTICE MUSMANNO.

On December 2, 1959, at about 6:20 a.m., Mrs. Irene Cuneo, 65 years of age, descended from a streetcar of the Philadelphia Transportation Company at what is known as the "trolley loop" located at Richmond and Huntingdon Streets in Philadelphia. With a transfer in her hand she proceeded to cross two tracks at that point in order to reach another streetcar which was to take her to her place of employment. As she stepped in front of the car which was halted in front of the one from which she had disembarked, the latter car moved forward and struck her, inflicting serious injuries. In her ensuing suit against the Philadelphia Transportation Company the jury returned a verdict in her favor in the sum of $41,000. The defendant moved for judgment n.o.v. and a new trial. Both motions were refused by the court below and this appeal followed.

It is the contention of the defendant company that the plaintiff failed to prove negligence on the part of the company and that the plaintiff was herself guilty of contributory negligence. Neither contention is supported by the record. The locus in quo was a trolley loop made up of three tracks, which we will designate as tracks Nos. 1, 2 and 3. Mrs. Cuneo came into the loop on track No. 1 aboard a streetcar entitled Route No. 15. She was here required, as already stated, to

[ 405 Pa. Page 535]

    disembark so as to cross over to track No. 3, where she would board a car entitled Route No. 60. To reach track No. 3, she had to traverse tracks Nos. 1 and 2. Another Route 15 car had already stopped in front of the Route 15 car on which Mrs. Cuneo arrived.

The defendant argues that the plaintiff had "two perfectly safe ways to cross the track, one behind the leading car and the other far enough in front of it to be visible to the motorman before she stepped on the track or reached a position of danger."

The first "perfectly safe way" the defendant recommends might well be termed an invitation to suicide. To pass between two standing cars with the possibility that the leading car might back up or the second car might move forward, with an inevitable crushing of the passenger in between, would hardly be a method approved by any safety committee for crossing tracks.

The second "perfectly safe way" required the plaintiff to move a greater distance down the platform before crossing over so that, the defendant argues, she would be more visible to the motorman. But if the motorman did not see Mrs. Cuneo when she was within his immediate vision in front of his car, ...


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