I would affirm the action of the learned court below in entering judgment n. o. v. for defendant company on the ground that no negligence was shown, on the following excerpts from the court's opinion. "The testimony indicates that just before the collision the trolley car was stopped at a time when the automobile was thirty feet away but the auto continued in its course and crashed into the trolley car. *Page 117
"The plaintiff Charles A. McCuen called the defendant Alfred P. Brown on cross examination. Part of Brown's testimony seeks to place the blame for the occurrence upon the motorman. However, on cross examination by the defendant the Philadelphia Rapid Transit Company, Brown admitted that a statement which he had made in writing and signed told the correct story of this accident. An examination of his testimony which appears on page 132 of the transcript and continues on page 133, leaves no doubt that he is emphatic in declaring that the statement with which he was confronted is true. The statement flatly contradicts the testimony which he gave at the trial, and is in part as follows:
'I was operating my Dodge sedan, Pennsylvania License CF923, southwest on Grays Ferry Avenue on the right-hand side about one foot from the curb at not over twenty miles per hour. Just above 24th Street, a pedestrian started to step off the curb. I swerved to my left into a trolley which was coming northeast, injuring myself and a passenger in my car.
Q. Did you see the trolley coming?
A. I did not until it was on top of me.'
"Under these circumstances we could not permit the jury to attempt to reconcile the conflict which exists between this statement and his other testimony. The situation is controlled by the opinion in Cox vs. Wilkes-Barre Railway Corporation,340 Pa. 554, which in turn followed Black vs. Philadelphia RapidTransit Company, 239 Pa. 463."
It is conceded that without the testimony of Brown, there is no evidence of negligence of defendant company to submit to a jury. *Page 118