Appeal from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1959, No. 82, in case of Sylvia Vaughn and Clarence Vaughn v. Philadelphia Transportation Company and Clarence Vaughn.
Walter E. Knecht, Jr., for appellant.
Robert Schaffer, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen.
Sylvia Vaughn was a passenger in an automobile operated by her husband, Clarence Vaughn, when it ran into the rear end of a street car. Personal injuries resulted. This action for damages followed wherein the Philadelphia Transportation Company was named defendant. Clarence Vaughn was then brought on the record as an additional defendant. After trial, the jury returned a verdict in favor of the wife-plaintiff in the sum of $20,000 against both defendants jointly. Post trial motions filed on behalf of the original defendant were dismissed. From the judgment entered on the verdict, the original defendant appeals.
The street car involved had two yellow lights on the rear thereof with the word "s-t-o-p" printed on each light. If functioning properly, these lights would go on automatically when the brakes of the street car were applied. Two additional red lights were also located on the rear of the street car.
The plaintiffs' evidence established that, as the street car approached the intersection where the collision occurred, it was traveling at a rate of speed approximating 25 to 30 miles per hour; that the Vaughn automobile, traveling in the same direction at about the same speed, was approximately 30 feet to the rear; that the street car, suddenly and without warning, came to a stop when the intersection light changed from green to cautionary yellow; that the stop-warning signal-lights on the rear of the street car failed to function or to illuminate; and, that the Vaughn automobile ran into the rear of the street car.
In answer to the above, the traction company offered evidence to prove that the street car came to a gradual and slow stop at the intersection; that it had been stopped for about 15 seconds before the Vaughn automobile struck it in the rear and pushed it forward fifteen feet; that the stop-warning signal-lights were functioning properly, and were still on immediately after the accident, and also were functioning properly when the street car had previously left the barn.
On this record, the question of the traction company's negligence was strictly a jury question, although error in the charge of the trial court requires the grant of a new trial.
Plaintiffs contended at trial that the operator of the street car was negligent in not giving a hand or mechanical signal of the intention to stop, as required by the provisions of Article X, § 1012 of The Vehicle Code, Act of May 1, 1929, P. L. 905, as amended, 75 P.S. § 1012. In line with this position, the trial court charged the jury, inter alia, as follows: "Now, the duty which the law imposes upon the defendant, PTC, is as follows. Our Vehicle Code provides that the driver of any vehicle upon the highway, before starting, stopping and turning shall first see that such movement can be made in safety. That is, members of the jury, our Vehicle Code provides for the giving of a hand or a mechanical signal of an intention to start, stop or turn from a direct line of travel. This section of our Code requires that such signal be plainly visible to an approaching or following vehicle whenever the operation of such vehicle may be affected by such stopping, starting or turning."
The relevant section of The Vehicle Code, supra, requiring a signal to be given of an intention to stop, etc., applies to "vehicles", but the code is clear that "vehicles" does not include street cars operating on rails.
Originally, Article I, § 102 of the Act of 1929, supra, 75 P.S. § 102, defined the term "vehicle" to mean "every device in, upon or by which any person or property is or may be transported . . . upon a public highway, excepting . . . devices . . . used exclusively upon stationary rails or tracks . . . ." In Feldman v. Philadelphia R. T. Co., 106 Pa. Superior Ct. 494, 163 A. 39 (1932), the Superior Court ruled that § 1013(a) of the Act of 1929, supra, 75 P.S. § 1013(a) (formerly 75 P.S. § 572), dealing with the right-of-way where two "vehicles" approach an intersection at the same time, did not apply to street cars. Thereafter, the legislature amended said § 1013 by the Act of June 29, 1937, P. L. 2329, to read "when two (2) vehicles, or two (2) streetcars, or two (2) trackless trolley omnibuses approach or enter . . . an intersection . . . ." (Emphasis supplied). That the legislature deemed it necessary to add the term "streetcars" when it had already included "vehicles" is persuasive that the former is not included in the latter generally. Furthermore, at the same time, the Proviso to § 102 of the Act of May 1, 1929, supra, defining "vehicles" was amended to read, "That, for the purpose of Article X of this act, . . . any other device moving upon wheels on a public highway, except a device moving upon wheels upon stationary rails or tracks on a public highway, shall be deemed a vehicle." (Emphasis supplied). Act of June 29, 1937, supra. Thus we see that the legislature fully intended that street cars were not to be regulated under the general ...