Louis Cinquina, age 65 years, was struck and fatally injured by a street car of defendant, Philadelphia Transportation Company, as he was walking across the right-angle intersection of Eleventh and Market Streets, in the City of Philadelphia. As administratrix of his estate, his widow, Rose Cinquina, brought this suit in trespass under the Wrongful Death Statute of April 26, *Page 548 1855, P. L. 309, as amended, and the Survival Act of July 2, 1937, P. L. 2755. At the trial, counsel for plaintiff informed the court that the cause of action under the latter statute was abandoned. The jury returned a verdict of $20,000 in plaintiff's favor. Judgment having been entered on the verdict after the refusal of motions for judgment n. o. v. and a new trial, defendant appealed.
The accident occurred at about five-forty on the clear afternoon of April 22, 1947, at the intersection of Eleventh and Market Streets. The latter street, which is 62 feet wide from curb to curb, with sidewalks 19 feet in width, is a very busy east and west thoroughfare. It is traversed by double street car tracks. The north rail of the westbound track is 23 feet 5 inches from the north curb, and the track is 5 feet 2 inches from rail to rail. Eleventh Street, which intersects Market Street at right angles, is a one-way street, traffic moving northward. It is 26 feet between curbs, with sidewalks 12 feet wide, and has a single car track located in the center of it.
Traffic at this intersection is controlled by two sets of lights located on Market Street — one situated on a pedestal 3 feet north of the north rail of the westbound track, about 13 1/2 feet east of the east curbline of Eleventh Street; and the other located on a pedestal 3 feet south of the south rail of the eastbound track, approximately 13 1/2 feet west of the west curbline of Eleventh Street. The sequence of these traffic lights is green, amber, red, amber and green. The red and green lights are timed for 17 seconds and the amber for 3 seconds.
While the testimony is conflicting, when viewed in the light most favorable to plaintiff, the jury reasonably could have found the following facts: Shortly before the accident, Cinquina, with the green light in his favor, started to walk across Market Street, from the northwest corner of the intersection to the southwest corner *Page 549 thereof, using the regular pedestrian crosswalk. As he started to make the crossing, walking steadily, a westbound street car was stopped, discharging passengers, at a safety zone located approximately 10 feet east of the traffic light on the north side of Market Street east of Eleventh Street. Cinquina proceeded on the foot crossing, and, when he reached a point on the cartway of Market Street about 8 or 10 feet north of the north rail of the westbound track, the trolley started 2 seconds after the traffic signal had turned red against it, picked up momentum and proceeded across Eleventh Street. The front end of the trolley struck him as he was a foot or two inside the north rail of the westbound track. He was knocked down, seriously injured, and as a result died three days later. There was no vehicular traffic in the north cartway of Market Street, nor was there any traffic between the trolley and Cinquina, who was in plain view of the operator of the car from shortly before he left the sidewalk until he was struck. From the moment the car started across Eleventh Street until the accident, the traffic light continued red against the street car.
Defendant did not, and obviously could not, argue that the evidence adduced was not ample to convict it of negligence. The testimony established that the motorman was negligent in operating the street car through a traffic signal and striking Cinquina, who was walking across the intersection on the crosswalk, with the traffic light in his favor. It is the contention of defendant, however, that the learned court below erred in not entering judgment in its favor, notwithstanding the verdict, because of the contributory negligence of Cinquina. It argues that inasmuch as the sole eyewitness called by plaintiff stated that he did not see Cinquina look eastwardly at any time as he proceeded from a point 8 or 10 feet north of the north rail of the westbound track *Page 550 "until the car was quite close to him", and because Cinquina was struck almost at the moment he stepped upon the westbound track, he was contributorily negligent as a matter of law. With this argument we cannot agree.
In considering this argument of defendant, it must be borne in mind that it is only in a case where contributory negligence is so clearly revealed that fair and reasonable men could not disagree as to its existence, that a court can so declare as a matter of law: Keiser v. P. T. C., 356 Pa. 366, 372,51 A.2d 715. Furthermore, a person killed in an accident is presumed to have been free from negligence: Delmer v. Pittsburgh Rys. Co.,348 Pa. 147, 151, 34 A.2d 502. In this connection, this Court said, in Scholl v. Phila. Sub. Transp. Co., 356 Pa. 217, 224,51 A.2d 732: "To take away summarily, on the ground of contributory negligence, a plaintiff's right to go to the jury on that question, upon the presumption of his decedent's care, requires evidence so clear, direct and positive as to preclude any difference in the minds of fair and reasonable men with regard to the decedent's negligence."
Under the facts here presented, the rule that a pedestrian is guilty of negligence as a matter of law unless he looks for an approaching street car immediately before entering upon a trolley track is not applicable. In situations such as that in the instant case "whether the pedestrian should have looked again or was warranted in assuming that he could cross in safety depends upon shifting conditions, and presents, therefore, a question of fact rather than of law":Harrington v. Pugarelli, 344 Pa. 204, 207-8, 25 A.2d 149. Here, the jury had a right to find that Cinquina looked as he left the sidewalk and saw the street car at a standstill with the traffic signal against it and in his favor, and, as he proceeded across Market Street, that he approached the *Page 551 westbound track and entered upon it on the assumption that defendant's motorman would not start the trolley into the intersection through the red light and run him down. When Cinquina realized that the street car was disregarding the red light and was running through the intersection he was then in a position of peril on the cartway through no fault of his own, and, therefore, he was not legally responsible if his judgment was not the best.
In Newman v. Protective M. S. Co., 298 Pa. 509, 148 A. 711, we held that plaintiffs cannot be legally convicted of being contributorily negligent because, after they embarked on the crossing, they did not look in the direction from which the truck was approaching. There it was said, (p. 513): ". . . the traffic light was in favor of the pedestrians while they were crossing Pine Street, and against the truck driver during all the time that he proceeded in their direction, from the moment he reached the house line on the east side of Broad Street more than 100 feet away from them. The language used in Gilles v. Leas, 282 Pa. 318, at page 322, is most appropriate here, 'He [the pedestrian] had an undoubted right to leave his place on the sidewalk when nothing appeared before him, and the traffic signal was not turned against him. His position became perilous only through the unlawful act of defendant.' In that case, the signal was changed while the plaintiff was crossing the street; in this, it remained in the plaintiffs' favor while they were making the crossing."
In Villiger v. Yellow Cab Co. of PBG., 309 Pa. 213,163 A. 537, plaintiff started to cross a street as the signal light flashed green, and when she reached the middle of the street, she observed the driver of a taxicab had crossed the intersection without stopping, though the light was against him, and was approaching in her direction. In holding that plaintiff was not guilty of contributory negligence as a matter of law in continuing *Page 552 to cross the street, this Court said, (p. 215): "She may have reasoned (if under these exciting circumstances with a motor vehicle dashing toward her across a street against a red signal, she reasoned at all) that it would be best to continue . . . If she did so conclude, it could not be said the fault in the collision was hers. We have laid down rules to protect pedestrians at street crossings. We intend to maintain these rules with all possible strictness." See also Zurcher v.Pittsburgh Rwys. Co., 353 Pa. 212, 216, 44 A.2d 581; Vivino v.Nevius, 98 Pa. Super. 574, 578-9.
We are convinced from a study of the record in this case that there is nothing in the evidence from which a court could conclusively find as a matter of law that Cinquina exercised his right of way across Market Street in a careless manner. Therefore, the question of his negligence was for the determination of the jury.
Defendant complains that the verdict of $20,000 is excessive. In considering this contention, it must be remembered that we are dealing only with the pecuniary loss sustained by the widow under the Wrongful Death Statute, inasmuch as plaintiff waived any claim for damages under the Survival Act. Taking into consideration Cinquina's age at the time of his death, the fact that he was receiving the highest wages he had ever received, the amount he was contributing to his wife and family and the funeral bill, we are convinced that an award in excess of $12,000 cannot be sustained.
The judgment of the court below is reduced to $12,000, and, as modified, is affirmed.