
    Hisak v. Lehigh Valley Transit Co., Appellant.
    
      Argued April 20, 1948.
    Before Maxey, C. J., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
    
      William S. Hudders, with him Butz, Steckel, Hudders & Rupp, for appellant.
    
      E. G. Scoblionko, with him Everett Kent, for appellee.
    July 6, 1948:
   Opinion by

Mr. Justice Horace Stern,

Moore’s Lane is a paved black-top road approximately 25 feet in width, running north and south in Salisbury Township, Lehigh County. Plaintiff was driving his Pontiac coupe in a northerly direction on this lane in the late afternoon of April 1, 1943. As he came toward defendant’s street-car track, which intersects Moore’s Lane at right angles, he. stopped at a point six .feet south of the south rail and again when but a foot distant therefrom, he himself, in his seat' in ‘the automobile,' being then about four feet away." He says that he looked to the right and left but át neither stopping point could he see for a greater distance than 150 to 200 feet; he saw nothing on the track; he listened but heard nothing; no whistle was sounded or bell rung. So he started across, his automobile merely “crawling” because the south rail, was higher than the north rail and the space between them was full of rocks and holes. After the front wheels had passed the north rail and the*rear wheels the south rail the automobile was struck with tremendous force by defendant’s trolley car coming from the east and was pushed ahead of it for a distance of 100 to 125 feet. Plaintiff was severely injured, brought suit for damages, and recovered a verdict of $15,000. Defendant appeals from' the refusal of the court below to grant its motions for a new trial and for judgment n.o.v.

One of plaintiff’s witnesses testified that the trolley car was running at 60 miles an hour and did not reduce its speed at any time before striking the automobile. There can be no question therefore as to the testimony being sufficient to convict the motorman of negligence. But defendant rests its claim for judgment n.o.v. on plaintiff’s alleged contributory negligence. It appears from á plan and from photographs placed in' evidence by defendant which were taken nearly two years after the accident that the car track to the east of Moore’s Lane runs in almost a straight direction for a distance of approximately 500 feet, at which point it turns sharply to the south; and that the view for that distance was wholly unobstructed. Defendant claims that these are incontrovertible physical facts and accordingly that plaintiff’s testimony that he could see ohly 150 to 200 feet and that there was nothing in sight" when he looked should be rejected as being either intentionally or mistakenly false. It is true, of course, that the measured distance between the intersection and the curve must be accepted as correct and that it is vain for a person to say" he looked and listened when, in spite of whát his eyes and ears must have told him, he drove in front of an approaching ;car by which he was immediately struck: Lessig v. Reading Transit & Light Co., 270 Pa. 299, 113 A. 381; Barton v. Lehigh Valley Transit Co., 283 Pa. 577, 129 A. 585; Reilly v. Philadelphia, 328 Pa. 563, 195 A. 897. But in the present case this principle of law is inapplicable for. two reasons. The first of these reasons is that, even though the distance to the curve, was 500 feet, there was ample testimony that.at,the time of..the accident the view ■ was , obstructed by weeds and brush which were higher than a ¡man’s head and extended all along the south side of the track close to the ends, of the ties. One. witness stated that at that time yo,u had to get on the car track itself before you could see all the way to the curve, another that the brush was four or five feet high, in places. and ■ that a person would be “lucky” if he could see 50 feet down.the, track, another that you could.npt see more than 100 feet if .standing at a point two-feet south-of the .south rail, and still another that one-would, have to stand almost on the south rail in order to see up to the curve because the brush came so close .to the track as to sweep the sides of the cars as they passed.. Under such circumstances the doctrine of incontrovertible, physical facts passes out of the case: Scholl, Administratrix, v. Philadelphia Suburban Transportation Company, 356 Pa. 217, 225, 226, 51 A. 2d 732, 737; Peruzzi v. Pennsylvania R. R. Co., 99 Pa. Superior Ct. 519, 524, 525.

The second reason which, refutes ¡ defendant’s contention is that contributory, negligence cannot be declared in this case as a .matter of law because it is possible that plaintiff’s automobile was struck by a street car which was not in sight — even at. the distance of 500 feet — when he committed, himself to the intersection, since the automobile. was not hit instantaneously on starting across the track: Cuteri v. West Penn Railways Co., 305 Pa. 347, 157 A. 686; Ehrhart v. York Rys. Co., 308 Pa. 566, 570, 571, 162 A. 810, 811. If the trolley car ran, as-the testimony indicated, at . a speed of 60 miles an hour, it'would, have-negotiated 500-feet in less than six seconds; meanwhile the automobile had to.start:from a position , of rest and then- to - advance very- , slowly because of the had condition of the crossing, so that it might well- have been- struck before it had entirely-cleared the track 'by a car' coming-from out of sight around the curve/ the '¡testimony being that- only the rear half of the automobile was - -still within the rails when the collision occurred. Nor can • it be held; as a matter of law; that, in the absence-of the, blowing of a whistle or sounding of a gong, plaintiff was bound' to hear- the noise of the oncoming car even though some other person might, by reason of a-keener sense of hearing,'have become awaré of its approach. -

While, therefore,- from -what has been said, it is .clear that the motion for judgment-n.o.v;: was properly re-, fused, defendant- stands oh firmer ground in its application for the granting of a new trial. Its appears that the learned trial judge properly told ¡the jury in the beginning of his charge that the driver of a motor vehicle is not warranted in assuming that if he is the first to reach the crossing he may go on and leave to the motorman of an approaching car the: entire duty- of vigilance in order to avoid: a collision, — that-the rule-as to street cars and autoinobiles at 'intersections does not contemplate a race between them to see which can get across first. Unfortunately, however, under a misapprehension as to what was said in Dopler v. Pittsburgh Rys. Co., 307 Pa. 113, 119, 120, 160 A. 592, 594; the court affirmed a point submitted by plaintiff as follows:-“As long as a-street car is-not at the crossing, a vehicle which arrives at an intersection first might with safety, so far-as a claim for damagés is concerned, cross it without being guilty of any breach: of duty on which ány negligent act: cohld be.predicated. Whether .the street car was 25, 50, or 100 feet away would be immaterial; > The. automobile, being at the crossing -first;- would have-the right to go over.” Of course, not only was this erroneous, ■ but it bore upon the most vital issue involved in the case, because, while plaintiff contended that, .he started-across when the trolley car. was -, not yet. in sight, the motorman testified that when he was but two car lengths away, from Moore’s Lane .he, saw; the automobile - approaching at a, distance of-18 to-20 feet south of the south rail and that it.kept on.without stopping and came on the crossing: when, the streetcar, running-ah a speed-of 15 to 20 miles an i hour, was only about-one-half car length away.. It is obvious that even if -the jury decided-to. accept this testimony they , would have .been justified in believing, under the court’s affirmance of plaintiff’s point, that they could nevertheless render a verdict for plaintiff. Where an erroneous instruction -consists of a palpable misstatement of the law,- it is .not cured by. a conflicting or contradictory one which correctly states, the law- on ,the point involved, for the jury, assuming, as is their duty, that the. instructions are all correct, may as readily have followed the incorrect as .the. correct, one, and it is impossible to know which they accepted: Shaver v. McCarthy, 110 Pa. 339, 346, 5 A. 614, 616; Commonwealth v. Gerade, 145 Pa. 289, 298, 22 A. 464, 465, 466; Commonwealth v. Deitrick, 221 Pa. 7, 13, 14, 70 A. 275, 277; Commonwealth v. Greene, 227 Pa. 86, 90, 75 A. 1024, 1025; Commonwealth v. Wooley, 259 Pa. 249, 253, 102 A. 947, 948; Commonwealth v. Divomte, 262 Pa. 504, 509, 105 A. 821, 823; Commonwealth v. Ross, 266 Pa. 580, 584, 110 A. 327, 328, 329; Grove v. Equitable Life Assurance Society of the United States, 336 Pa. 519, 524, 9 A. 2d 723, 725, 726.

Because we are of opinion: that-a new trial must: therefore be ¿granted, it is not necessary to discuss two other complaints nlade by defendant, namely,, that the verdict was. excessive, and that a hypothetical question, asked by plaintiff’s counsel - of a medical Witness was. improperly allowed.

Judgment reversed and a new trial awarded.  