McPhillips v. Union Traction Co.

Opinion by W. W. Porter, Aside from the question of the negligence of the defendant, the learned court below erred in not directing a verdict for the defendant on the ground of the plaintiff’s contributory negligence. The essential facts, shown by the testimony for the plaintiff, upon which this conclusion rests, are that the plaintiff drove deliberately out of a driveway in the middle of a block into Lancaster avenue upon which were the two tracks of the [225] defendant company; that he looked and saw an approaching ear about three quarters of a block distant when the front wheels of his dearborn wagon were at the curb, some sixteen feet from the nearest track; that he then turned slowly to the west, and instead of keeping clear of the track, swung over the first rail, whereupon his horse was almost instantly struck. The case comes easily within the rulings in the cases of Cupps v. Consolidated Traction Co., 13 Pa. Superior Ct. 630, decided by this court, Tyson v. Union Traction Co., 199 Pa. 264, Burke v. Union Traction Co., 198 Pa. 497, and Smith v. Electric Traction Co., 187 Pa. 110, decided by the Supreme Court. It was the plaintiff’s duty to look just before he got upon the track. Had he done so and been guided in his conduct by what he could clearly have seen, the collision could not have occurred. Furthermore, he had ample space to make his turn to the west and pursue his intended course without encroaching upon the defendants’ tracks at all. The judgments are reversed.