Appeals, Nos. 149 and 150, March T., 1963, from judgments of Court of Common Pleas of Allegheny County, July T., 1955, No. 3491, in case of Sophie Castelli and Frank Castelli, her husband, v. Pittsburgh Railways Company. Judgments affirmed.
Leo Daniels, with him Prichard, Lawler & Geltz, for appellant.
Herbert N. Rosenberg, with him Rosenberg and Rosenberg, for appellees.
Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Mrs. Sophie Castelli was injured in a streetcar accident, she and her husband brought suit against the Pittsburgh Railways Company, the trial judge entered a non-suit against the plaintiffs, the plaintiffs appealed and this Court reversed (402 Pa. 135). On the second trial, the jury returned a verdict in favor of the plaintiffs and now the defendant appeals, seeking a new trial.
The facts follow: On June 29, 1953, Mrs. Castelli, having paid her fare, was sitting in a streetcar traveling southwardly on Lincoln Avenue in Pittsburgh when, without warning of any kind, she was struck on the head, neck and back and she fell to the floor unconscious. It developed later that the explanation for this violent visitation was that a truck, loaded with debris and planks, approaching the streetcar from the opposite direction, that is, traveling northwardly, drove so close to the streetcar that a plank, extending from the left side of the truck, crashed through a forward window of the trolley car, inflicting serious injuries to Mrs. Castelli. A witness by the name of Jas. B. DeSantis testified that the street car was moving at a speed of 20 to 25 miles an hour, the truck at a rate of 15 miles per hour, that the truck did not confine itself to its lane of travel and was practically traveling in the "dummy," or the space between the two tracks.
DeSantis caught sight of the truck when it was about 75 to 80 feet away from him to his left and, turning his head, he saw the streetcar when it was about 100 to 110 feet distant to his right, so that the truck was some 195 feet ahead of the streetcar when the motorman saw it or should have seen it, if he had been looking as he should have been looking. He thus had plenty of time and distance within which to avoid what was to happen unless the truck changed its course, or the street car or truck stopped. In spite of this, the motorman did not stop, slacken the speed of his streetcar, or sound his warning gong. The inevitable crash occurred and the streetcar then finally stopped five or more feet beyond the point of impact.
The defendant company, in this appeal, points to the testimony of the motorman that he did ring his bell. Of course, whether he sounded the bell or not was a question of fact for the jury, and the jury found adversely to the defendant. It may be added in this connection that in the written narrative of the accident submitted by the motorman to his employer immediately after the accident he said nothing about ringing his bell, although at the end of the report, in answering a specific question as to whether the bell was sounded, he did answer in the affirmative.
The motorman testified at the trial that in addition to ringing the bell, he waved his hand to the truck driver. Defendant's counsel argues that even if the plaintiff's version that no bell was rung be accepted, this would not affect the defendant's case because the waving of a hand is a "warning far more meaningful and certainly less ambiguous than the ringing of a street car bell." The answer to this argument is that even if the motorman waved his hand, there can be no assurance that the physical conditions were such as to guarantee that his ...