Mooney v. Kinder
Mooney v. Kinder
Opinion of the Court
Opinion by
In this case there was no request made by counsel at the conclusion of the charge to have it and the points made part of the record,- and, for that reason, the assignments specifying error in the charge and in the answers to points cannot be considered. This however makes no difference in the disposition of the case, for the reason that appellant’s real ground of complaint is that the court below refused to enter judgment for the defendant on the whole record; and it sufficiently appears that he fulfilled all requirements of practice, entitling him to raise the question of the correctness of this ruling: see opinion by Mr. Justice Simpson in Keck v. Pittsburgh, H., B. & N. C. Ry. Co., 271 Pa. 479.
Plaintiff, accompanied by two other girls, was crossing Graeme Street at the point where it enters Fifth Avenue, in the City of Pittsburgh. Defendant was driving a truck, belonging to him, on Graeme Street toward Fifth Avenue. In crossing the street, plaintiff walked
What of defendant’s negligence? He contends none was proven. He did not take the witness stand to explain how the accident happened, although present in court, and called no witness to vouchsafe an explanation of it. Plaintiff’s proofs were that defendant blew no horn and gave no other warning of his approach to the crossing. He was bound to know that he was in a locality where traffic was dense, and, in approaching a crossing such as that in question, continuously used by pedestrians, he should have given warning of his approach and had his car under such control that it could be stopped promptly. There is a higher degree of care due by the drivers of motor vehicles at all street crossings than at other points in the highway, but at such crossings as this, because of the perils to pedestrians using them under modern traffic conditions, the duty of care which is cast upon the driver of such a vehicle as that which defendant was driving, is of the highest degree. In setting up the defense of contributory negligence, appellant urges that, if plaintiff had looked in the direction from which he was coming, she would have seen him, and that her companion did see him; but, as before stated, plaintiff’s observation could not be confined alone to the street on which defendant was approaching, — she was bound to take account of traffic coming three other ways. Defendant had no such burden of observation put upon him, and, with a less duty in this respect than plaintiff’s, he admits (by his argument that she could have seen him if she had looked) that he could have seen her had he been observant and careful. Instead of safeguarding her as he approached the crossing, he ran her down. Obviously, if he had been proceeding with due care, the accident would not have happened, because, with his car under such con
To the end that drivers of motor vehicles may have brought to their attention the rule of law applicable in cases where they approach street crossings, we reiterate what was recently said in Silberstein v. Showell, Fryer & Co., 267 Pa. 298, 305, “Vehicles have the right of way on the portion of the highway set .aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their car so as to prevent danger to pedestrians......He [the driver] is under the definite duty of having it [the motor vehicle] under control; if an accident cannot be avoided without stopping, he must stop his car......The automobile must come to the crossing under control.”
Under the facts as shown, and the law applicable to them, the court could not have entered judgment for defendant.
The assignments of error are overruled and the judgment is affirmed.
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- Appeals — Assignments of error — Charge — Points — Failure tó have charge and points made part of récord. ■ 1. Assignments of error specifying error in tbe charge and answers to points, cannot be considered, where, no request was made in the court below to have the charge and~points made part of the record. Appeals — Assignments of error — Judgment n. o. v. — Act of April %%, 1905, P. L. m. 2. An*assignment of error based upon the refusal to enter judgment for defendant on the whole record, will be considered by the appellate court, although the appellant' made no request in the court below to have the charge and points made part of the record, if it appears that the appellant presented -a request for binding instructions as provided by the Act of April 22, 1905, P. L. 286. Negligence — Automobiles — Pedestrian at crossing — Contributory negligence — Case for jury — Evidence.' 3. Vehicles have the right of way on the portion of the highway set aside for them, but, at crossings, all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their car so as to prevent danger to pedestrians. If an accident cannot be avoided without stopping, a driver must stop his ear. 4. Where a pedestrian about to cross a street looks and sees no vehicle approaching, and after completing the crossing, and when about to step from the cartway on to the sidewalk, is struck by an automobile, she cannot be charged with contributory negligence as a matter of law, in failing to keep her attention fixed on the street which she was crossing, when she had to be observant not only of the traffic on that street, but also such as-was turning into it from other directions. 5. In such case, a verdict against defendant will be sustained, where-the evidence tends to show that he gave no warning of his approach, and that, if he had had his car .under proper control, the accident would not have happened.