
    Michalsky v. Putney, Appellant.
    
      Negligence — Automobiles—Death—Case for jury.
    
    In an action against the owner of an automobile, who was also its driver, to recover damages for death of plaintiff’s husband, it appeared that the accident happened in broad daylight on a much traveled paved business street, which was occupied by two street railway tracks one running east and west. The deceased was a passenger on a car which stopped nearly opposite to his home, to reach which he had to cross the two tracks. The place where the car stopped, although not a crossing, was a regular stopping place indicated by a signboard attached to a telegraph pole. When the deceased stepped off the western side of the rear end of the car he was facing the direction from which the automobile came, but it was not then in sight. He spoke to a friend in a wagon and started immediately across the street. When he approached the eastern track he saw the automobile which had given no signal and made motions towards it immediately before he was struck. A number of bystanders uttered shouts and signals of alarm, but the deceased failed to appreciate his dangerous situation and turn back. His body was rolled over a number of times and carried a distance of ninety-five feet. The rate of speed of the automobile was variously estimated by the witnesses from fifteen to forty-five miles per hour. It could have been stopped within twenty or thirty feet when going at the rate of fifteen miles, or within seventy-five feet when going at the rate of thirty-five miles. There was twelve feet of roadway between the eastern track and the curb. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued May 15, 1912.
    Appeal, No. 157, April T., 1912, by defendant, from judgment of C. P. Butler Co., Maxell T., 1912, No. 146, on verdict for plaintiff in case of Sophia Michalsky v. H. E. J. Putney.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Galbreath, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,500. Defendant appealed.
    
      
      Error assigned was in refusing binding instructions for defendant.
    
      Thomas H. Greer, with him J. H. Painter and John B. Greer, for appellant.
    — The deceased was guilty of contributory negligence: Scowden v. R. R. Co., 26 Pa. Superior Ct. 15; Tozer v. R. R. Co., 45 Pa. Superior Ct. 417; Kauffman v. Nelson, 225 Pa. 174; Robb v. Connellsville Borough, 137 Pa. 42; Buzby v. Traction Co., 126 Pa. 559; Trout v. Ry. Co., 13 Pa. Superior Ct. 17; Sullivan v. Traction Co., 198 Pa. 187.
    
      T. C. Campbell, with him W. Z. Murrin and John Murrin, for appellee.
    — It is the duty of a person operating an automobile who sees a street car standing at a regular stopping place, to exercise very great care in passing it, to avoid injury to persons going to or from it: Kauffman v. Nelson, 225 Pa. 174; Warner v. Ry. Co., 141 Pa. 615; Gilmartin v. Transit Co., 186 Pa. 193; Smith v. Traction Co., 187 Pa. 110; Gregory v. Slaughter, 124 Ky. 345 (99 S. W. Repr. 247).
    July 18, 1912:
   Opinion by

Orlady, J.,

The plaintiff’s husband was killed by the defendant’s automobile when it was being driven over a much traveled paved business street, which was occupied by two street railway tracks.

The defendant was driver for five or six others and was operating a seven passenger Packard automobile at a rate of speed which is described by a number of witnesses, at from fifteen to forty-five miles per hour. Twelve witnesses testified that no signal was given of its approach. The plaintiff’s husband was a passenger on a car which stopped nearly opposite to his home, and at a place that was a well-known, regular stopping place. While there was no street crossing at this point, a sign of — cars stop here— had been nailed to a telegraph pole, and the car company as well as the traveling public recognized it as a regular stopping place. When the deceased stepped off the western side of the rear end of the car, opposite his own home, he was facing in the direction from which the automobile approached, but it was not in sight at that time. He spoke to a friend who was seated in a wagon and started across the street. When he approached the eastern street car track he was looking in the same direction and made motions with his hands towards the automobile, immediately before he was struck. A number of eyewitnesses noticed the deceased and the approaching car, and gave cries, shouts and signals of alarm, but in the confusion of sound the deceased failed to appreciate his dangerous situation and turn back. The violence of the collision was such as to knock the deceased down, roll the body over a number of times and carry it a distance of at least ninety-five feet, and resulted in his instant death. The testimony further showed that such a Packard car under proper care going at the rate of fifteen miles an hour, could be stopped within twenty or thirty feet, or even when going at the rate of thirty-five miles an hour, could be stopped within seventy-five feet.

The defendant’s negligence can hardly be disputed. Common sense and common prudence, join in demanding that the most ordinary care must prohibit such a use of a public thoroughfare, and this accident shows a most reckless disregard of life and property by the defendant. The contributory negligence of the plaintiff was fairly and fully submitted to the jury in a charge that represented the law so clearly that all the points submitted by the plaintiff were affirmed, as well as those submitted by the defendant, except the one asking for binding instructions. The evidence fails to show any loitering by the deceased, and it affirmatively shows that as the street car from which he alighted passed on, he started directly across the street, because his home was there located. There was positive testimony that he did look in the direction from which the automobile approached and that he signaled to it; that there was twelve feet of roadway between the car track and the curb, which could have-been occupied by the automobile, and whether the deceased was negligent in acting upon the presumption that the driver of the automobile would use ordinary care and prudence in its management, instead of ruthlessly running him down, was a question of fact for the jury.

The automobile had no superior right to the use of the street car track as such like a street car. Under the evidence, the place occupied by the deceased was the equivalent of a street crossing, used and recognized as such by the public and the street car company in making that 'location a place for the receipt and discharge of passengers.

Whether the sign of — cars stop here — was unplaced at the time this accident occurred, is immaterial, as the defendant must have seen the street car and that it had stopped. He was bound to presume that passengers were likely to be discharged at that time and place, and his automobile should have been under proper control to avoid such an unnecessary accident.

The judgment is affirmed.  