Appeal, No. 88, March T., 1962, from judgment of Court of Common Pleas of Allegheny County, April T., 1956, No. 1032, in case of Josephine Lescznski, administratrix of estate of Stanley Lescznski, deceased, v. Pittsburgh Railways Company. Judgment affirmed.
F. E. Conflenti, for appellant.
Leo Daniels, with him Prichard, Lawler & Geltz, for appellee.
Before Bell, C.j., Musmanno, Jones, Eagen and Keim, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from a judgment entered in a trespass action upon a verdict, directed by the trial court, in favor of Pittsburgh Railways Company (Railways) and against Josephine Lescznski, administratrix of the Estate of Stanley Lescznski (Lescznski).
The factual background of the accident which gave rise to this litigation has been well stated by the court below: "... Stanley Lescznski, a seventy-nine year old man, was struck and killed by a trolley operated by [Railways'] employee on Main Street in the Borough of Sharpsburg. The accident occurred at about 4:15 p.m. on April 17, 1954. Main Street is a four lane highway, 32 feet wide, running in an east-west direction with two trolley tracks occupying the center of the cartway. At the time in question [Lescznski] was standing on the North side of Main Street on the East side of its intersection with Nineteenth Street as extended. There was no evidence of the manner in which he crossed the street other than the statement of [Lescznski's] witness, the trolley operator, who said that he crossed from left (North) to right (South) ... He was next observed at the time he was struck by [Railways'] eastbound street car. There was no testimony that the trolley was speeding or had failed to stop as quickly as possible when the danger was first observed. Sand deposted on the tracks by the braking system of the street car shows that the operator of the trolley applied the brakes and stopped the car within 45 feet. ... The testimony further indicates that the point of impact was the southeast corner of the intersection of Main Street and Nineteenth Street. This is a 'T' intersection as Nineteenth Street extends South from Main Street but not to the North of that highway. [Lescznski] was found lying partly beneath the cow catcher on the under side of the front of the car. ... At the time of the accident, 4:15 p.m., Main Street was dry and clear and traffic was said to be
generally light at this time .... The street ... is level and without curvature for more than 200 feet in either direction from the point of impact. It must, therefore, be inferred that both parties had an equal opportunity to observe each other."
Lescznski instituted an action, under both the survival and wrongful death statutes, in the Court of Common Pleas of Allegheny County against Railways claiming that Lescznski's death had been caused by the negligence of the Railways' operator of the trolley car. At trial, at the conclusion of Lescznski's and the Railways' testimony, the court directed the jury to return a verdict in favor of Railways and against Lescznski. A motion for a new trial was dismissed and the court directed the entry of judgment on the verdict and, from that judgment, this appeal was taken.
The trial court below directed the verdict on two grounds: (1) that Lescznski had failed to prove that Railways was negligent and (2) that the testimony indicated that Lescznski had been contributorily negligent as a matter of law. The propriety ...