Cupps v. Traction Co.

Opinion by William W. Porter, J., The only specification of error is the refusal of the court below to direct a verdict for the defendant as requested by the point of charge. There is little discussion in the arguments directed to the allegation of negligence on the part of the defendant. The appellant urges that the negligence of the plaintiff contributed to the accident which caused his injury, and claims that there should be a reversal of the judgment. The plaintiff, with his wagon loaded with lumber, drove out of the private grounds of Mr. Miller. The driveway was a declivity. The plaintiff locked the rear wheels until the wagon reached the gutter of Fifth avenue. He then descended, partially loosened his brake and climbed up on the load upon his wagon. He looked up the street and down for the cars. He says: “ There was one car leaving Bidwell street, going east, the other was coming from Moorewood avenue. I started across the street. I was not dreaming of danger. I thought I had plenty of room and time to make it. The horses was walking at a reasonable step. As the horses got off the west going track, I thought I heard a car. I was sitting on the front of [634] the wagon with my feet hanging over the lower front wheel, As I turned around I heard no bell. Thought I heard the ear: I looked around and I had no sooner looked than it struck,” He further testifies that the distance from tbe point where he loosened the brake of his wagon to Moorewood avenue, where he saw the approaching car, was 321 feet, and that there was a clear straight track between him and the car. He saw the car coming at Moorewood avenue, and after that he started his team. He was asked: “ Then you did not look at the car again until yoii were struck? A. Until just I thought I heard it.” And again, after saying that he looked when he started to go over, he was asked: “ But you drove across the space between the curb and the first track and across the space between the two tracks and then on to the second track, and you didn’t look for the car at all as you went on the second track ? ” - To which he replied: “I didn’t suppose that I needed to keep looking.” The case thus presented is that of a man who looked and listened before he started his team; who in the middle of a square, not at a street crossing, drove diagonally -across the tracks of the trolley company in front of a moving car (which before starting he observed to be 321 feet away) and who, after starting his team, did not again look until the car was practically upon him. The plaintiff seems to have observed the rule to look, listen and, if necessary, stop, before attempting to make the crossing, but where such an attempt is made, one look may or may not be sufficient. It is the look which is made just before he attempts to cross which protects one from the imputation of contributory negligence: Ehrisman v. R. R. Co., 150 Pa. 180. It is true that street railways have not the exclusive right of way of their tracks. Their rights are superior, however, to those of the traveling public. It is the duty of those using’ the highways, whether on foot or in vehicles, to yield the right of way to the cars: Jones v. R. R. Co., 9 Pa. Superior Ct. 65; Smith v. Traction Co., 187 Pa. 110. The plaintiff had no right to assume that the duty of avoid: ing the collision rested upon those in control of the car. He evidently made a miscalculation of his chance in: attempting to cross in front of the approaching car, but such a miscalculation [635] does not relieve from the charge of contributory negligence, even at a street crossing: Callahan v. Traction Co., 184 Pa. 425. We are of opinion that from all the testimony in the case, and particularly from the testimony of the plaintiff himself, there was no right of recovery, because of contributory negligence. Wherefore, the judgment is reversed.