McVaugh v. Philadelphia Rapid Transit Co.

Opinion by Me. Justice Pottee, This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. The plaintiff sought to recover damages under the allegation that the death of her husband was caused by the negligence of the defendant company. Mr. McYaugh, a man about sixty years old, undertook to cross Germantown avenue, a wide, unobstructed highway, about six o’clock on the evening of February 5, 1906, at or near the intersection of East Sharpnack street. He was caught in the space between two passing cars [520] and killed. At the close of the testimony for plaintiff, in granting the nonsuit, the trial judge said : “ He (the deceased) does not appear to have looked at the proper place, nor did he cross the street at the regular crossing, but went over it diagonally, Germantown avenue being a street with two tracks on it, and cars running in different directions.” It appears from the testimony that Mr. McY augh, the deceased, walked slowly from the sidewalk to the nearest street' car track, and crossed it in front of an approaching south bound car, which came to a standstill within a few feet of the place where he crossed. The motorman of that car says that he realized Mr. McYaugh’s peril from an approaching north bound car, and shouted to him as he was passing, and he responded, “ Oh, all right,” and then stepped across the first rail of the next track, but instead of drawing back or proceeding rapidly straight ahead to clear the second track he curved to the left, and turned back into the space between the two tracks and stood there by the side of the gate of the south bound car. Just then the north bound car reached the spot, and the space between the two cars being very narrow, Mr. McYaugh was caught between the two cars and injured so severely that he died shortly afterwards. The second car was stopped before it had entirely passed the first one, but too late to avoid the accident. There was no evidence of negligence upon the part of the defendant company unless it was in the failure to stop the north bound car before it reached Mr. McYaugh, but his action in stepping upon the track in front of the north bound car and then in swerving back against the side of the south bound car, must have been, under the evidence, almost instantaneous. And, under all the circumstances, the accident was clearly the fault of the deceased in walking deliberately across in front of the south ■ bound car, without at the instant taking note of the near approach of the north bound car upon the track farthest from him. It is not uncommon for pedestrians to step into danger by passing behind one car, over the second track and directly in front of another approaching car, which is hidden from them temporarily by the first car. But in this case the deceased had not even that excuse, for he passed in front of the first car, directly into the path of the second, and when he realized its proximity, and probably by reason of confusion or [521] fright, instead of drawing directly back from the second track, as he might readily have done, he curved around against the side of the first car, and stood in the space between the two tracks, where he was inevitably caught between the two cars. The learned trial judge could not, under the evidence, have reached any other conclusion than that the accident was the result of negligence of the deceased in passing with heedless steps directly into danger. The judgment is affirmed.