I would affirm the judgment of the Superior Court on the opinion of President Judge BALDRIGE reported in 160 Pa. Super. 291.
While I concur in the principles of law set forth in the majority opinion, I do not agree that these principles are properly applied to the facts as narrated by the plaintiff and which must be accepted in the light most favorable to the plaintiff's contention. It should not be held, on the present facts, as matter of law, that despite defendant's wanton negligence, plaintiff is barred from recovery because of his own wanton misconduct. In my view, plaintiff did not recklessly or unnecessarily expose himself to a known danger created by defendant's negligence. Plaintiff, of course, had no authority to assume the function of a traffic officer. According to plaintiff's testimony he became apprehensive that there might be a right angle collision between an approaching trolley car and fire truck. When he first stood between the rails of the single line trolley tracks and waved for the trolley car to stop before it reached the intersection, the trolley car wasapproximately 400 feet away, approaching at an estimated speed of 25 to 30 miles per hour. Defendant's testimony was that the trolley car was in full view of the plaintiff and, conversely, the plaintiff was in full view of the motorman. At a point less than 230 feet away, plaintiff turned around, still holding his hands up, and waved for the fire truck to come on. The trolley car, however, continued toward the plaintiff with unslackened speed. After the accident, the driver of the fire truck asked the motorman: "What is the idea of hitting that man? Didn't you see that man?" The motorman replied: "Sure, I saw the man, but what the hell is he doing on the track?" I agree with the Superior Court that if the motorman saw plaintiff on the track (which it is admitted that he did) and that the plaintiffobviously was not going to move, and *Page 650 there was sufficient time for the motorman to have stopped the car (which is conceded), then it was the duty of the motorman to stop to prevent injury or death rather than run the man down. The motorman could have stopped his car and either caused plaintiff's arrest for obstructing traffic or have forcibly removed him from the tracks.
For these reasons I dissent.