Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1960, No. 2504, in case of John E. Corona v. Pittsburgh Railways Company.
Harold Gondelman, with him Herbert Jacobson, and Jacobson & Gondelman, for appellant.
Con F. McGregor, with him Bechman, Dunn & McGregor, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Musmanno.
This is an appeal from the refusal of the court below to take off a compulsory non-suit in an action of trespass.
These are the facts out of which the action arose:
The plaintiff-appellant was operating his automobile one afternoon on Wood Street in Wilkensburg Borough, Allegheny County; he pulled over to the extreme right-hand side of the road to park and to pick up a friend; while he knew the wheels thereof were not touching the curb, he thought his automobile was free and clear of the streetcar tracks located in the middle of the street, but this was not so; a portion of his automobile extended out into the roadway partially blocking the pathway of an approaching streetcar; about two minutes later the left rear of the automobile was struck from behind by a streetcar owned by the defendant and operated by one of its employees, resulting in substantial damage to plaintiff-appellant's vehicle and in serious personal injury to himself.
In entering the compulsory non-suit, the court below declared plaintiff guilty of contributory negligence as a matter of law on the basis of a violation of the Act of April 29, 1959, P. L. 58, § 1021, as amended, 75 P.S. § 1021: "No person shall park a vehicle . . ., or permit it to stand . . . upon a highway . . .: . . . (13) Where such stopped or parked vehicle would prevent the free movement of a streetcar."
On appeal, plaintiff raises two questions: (1) Do the facts establish that plaintiff was guilty of contributory negligence as a matter of law? and, (2) Should the court below have submitted the question of whether or not the defendant's motorman was guilty of wanton misconduct to the jury?
We agree with the court below that the plaintiff, by parking his automobile in a manner which blocked the passage of the streetcar in violation of the Act of 1959, supra, was guilty of such contributory negligence as to bar himself from any recovery grounded upon a theory of "mere" negligence. ...