The opinion
Dissenting Opinion bt
Me. Justice Patterson:
It has long been the settled law of this Commonwealth that a pedestrian has an
absolute
duty to look for approaching trolley cars immediately before entering
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upon tlie car tracks and that failure to do so constitutes contributory negligence as a matter of law:
Watson v. P. T. C.,
356 Pa. 103, 106 , 51 A. 2d 613 .
1
The fact that a pedestrian is proceeding under a favorable traffic signal does not relieve him of this duty. A green light at a traffic intersection offers but a qualified permission to proceed, and the pedestrian crossing in reliance upon it must continually be on guard for his safety:
Schroeder v. Pittsburgh Rwys. Co.,
311 Pa. 398, 404 , 165 A. 733 ;
Dando v. Brobst,
318 Pa. 325, 328 , 177 A. 831 ;
Watson v. P. T. C.,
supra.
There was no vehicular traffic in the north cartway of Market Street and there were no other pedestrians on the crossing to obstruct decedent’s view. Either decedent proceeded onto the tracks without looking for approaching traffic after entering the cartway, or having-looked, he saw the oncoming trolley and nevertheless proceeded in disregard of the obvious and imminent danger. Appellee’s own evidence establishes that when appellant’s trolley started westward on Market Street, across Eleventh Street, decedent was 8 to 10 feet away from the northern rail; that decedent did not look eastward “until the car was quite close to him”; and that he stepped onto the track when the trolley was only a few feet away, and was immediately struck. In view of this evidence no presumption of due care by the decedent can arise. “Since the witness could and did see the street car, it is to be presumed that [decedent] either did not look or looking, decided to gamble on the possibility that he could cross in time. In either case he was
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chargeable with negligence. [The] presumption does not avail plaintiff in the face of the testimony of her own witness clearly establishing the negligence of decedent”:
Weldon v. Pittsburgh Rwys. Co.,
352 Pa. 103, 106 , 41 A. 2d 856 .
The cases cited by the majority involved injuries to pedestrians by motor vehicles and are not here controlling. “The rule that the direction in which a pedestrian shall, look while crossing a street depends upon the circumstances and is one of fact, is not applicable to his duty before stepping into the street or before stepping upon street-car tracks therein”:
Patton v. George,
284 Pa. 342, 346 , 131 A. 245 . As said in
Crooks v. Pittsburg Rys. Co.,
216 Pa. 590, 592 , 66 A. 142 , “Where a foot passenger walks or steps directly in front of an approaching [trolley] car, and is struck at the instant he sets his foot between the rails there is but one inference which can reasonably be drawn from that fact, and that is the inference of contributory negligence.”
I would reverse the judgment and here enter judgment for appellant.
Mr. Justice Horace Stern joins in this opinion.
1
See
Carroll v. Pennsylvania R. R. Co.,
12 W. N. O. 348;
Flynn v. Railways Co.,
234 Pa. 335 , 83 A. 207 ;
Cunningham v. Phila. R. T. Co.,
240 Pa. 194, 197 , 87 A. 291 ;
Patton v. George,
284 Pa. 342, 344 , 131 A. 245 ;
Sinnig v. Pittsburgh Rwys. Co.,
316 Pa. 328, 330 , 175 A. 405 ;
Dariks v. Pittsburgh Rwys. Co.,
328 Pa. 356, 358 , 195 A. 16 ;
Ferenee v. Pittsburgh Railways Co.,
341 Pa. 369, 371 , 19 A. 2d 385 ;
Weldon v. Pittsburgh Rwys. Co.,
352 Pa. 103, 105 , 41 A. 2d 856 . '