Opinion
October 11, 1939.
January 30, 1940.
Negligence — Automobiles — Entering upon through highway — Approaching vehicles — Contributory negligence — Sudden emergency — Evidence — Question for jury.
1. A driver of an automobile who has come to a full stop before a through highway may then proceed to cross the highway, even though other vehicles on the through highway are approaching the intersection, if he is so far in advance that, in the exercise of reasonable care and prudence, he is justified in believing that he can cross ahead of the approaching vehicles without danger of a collision.
2. Where such driver commits himself to the crossing, he is not bound to anticipate that the driver of the approaching vehicle will hasten rather than slacken his speed.
3. The fact that a driver is on a through highway does not relieve him of his duty of care at intersections; he is required to drive with due regard for the safety of vehicles entering such through highways.
4. Mere failure to decide correctly on a course of action when unexpectedly confronted with sudden peril is not negligence per se.
5. Contributory negligence may be declared as a matter of law only in a clear case.
6. Even if there is a conflict in the testimony of plaintiff, as long as there is some evidence to support his case, any inconsistency in the testimony is for the jury to resolve.
Appeal, No. 265, Oct. T., 1939, from order of C.P. No. 2, Phila. Co., September T., 1938, No. 172, in case of Peter Korenkiewicz v. York Motor Express Company, Inc.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Order affirmed.
Trespass for personal injuries.
Verdict for plaintiff in sum of $1,200. Motion by defendant for judgment n.o.v. overruled; motion by plaintiff for a new trial granted.
The facts are stated in the opinion of the court below, by BROWN, J., as follows:
This action in trespass is one of four arising out of a collision between an automobile driven by plaintiff and defendant's truck. Plaintiff and two occupants of the automobile were injured, and the third his mother, was killed. Upon defendant's motion, all the suits were consolidated and tried together, and the trial resulted in verdicts against defendant in all four cases. The amount awarded by the jury to the present plaintiff was $1200, and as he suffered a fracture of the right leg, multiple fractures of seven ribs, broken collar bone, fractured pelvis, concussion of the brain and other injuries, his motion for a new trial was granted, on the ground that the verdict was inadequate. Defendant's motion for judgment non obstante veredicto was dismissed, because we were all of the opinion that the case was one for the jury to determine. An appeal having been taken by defendant, on the sole ground that plaintiff was contributorily negligent as a matter of law, and that the court, therefore, erred in dismissing the motion for judgment n.o.v., we now state the reasons for our decision.
The testimony as to several important factors in this case was conflicting. It is axiomatic, however, that "on defendant's motion for judgment n.o.v., the testimony should not only be read in the light most advantageous to the plaintiff, and conflicts therein being resolved in his favor, but he must be given the benefit of every fact pertaining to the issues involved which may reasonably be deduced from the evidence. . . . . .": Ford v. Reinoehl, 120 Pa. Super. 285, 289. Viewed in the light most favorable to plaintiff, the evidence and the inferences to be drawn therefrom were such as to require the submission of the case to the jury.
The collision occurred on May 14, 1938, at about 5:00 A.M., just at daybreak, at the right-angle intersection of Bern Street and Fifth Street, in Reading, Pennsylvania. At this intersection, Bern Street, which runs east and west, is 34 feet wide from curb to curb, with 13 foot sidewalks and Fifth Street which runs north and south, is 50 feet wide from curb to curb on the north side, and 52 feet on the south side of Bern Street, with a west pavement of 14 feet, and an east pavement of 16 feet north of Bern Street and 14 feet south of Bern Street. Fifth Street is a through highway, and on Bern Street, 15 feet west of the curbline of Fifth Street, is a "stop" sign. At the northwest corner of the intersection, facing on Fifth Street, is a diner.
Plaintiff, with his headlights on, was driving east on Bern Street. He noticed the "stop" sign when he was approximately 200 feet from the intersection. He came to a stop at the sign, glanced to the right and saw no traffic. He then looked to the left, but his vision was obstructed by the diner and one of defendant's trucks which was parked in front of the diner. Plaintiff pulled ahead 5 or 6 feet, and again looked to his left, between the diner and the parked truck. He then saw a truck coming south on Fifth Street, about 200 to 250 feet away. This truck, similar to that which was parked outside the diner, weighed seven tons, and was carrying a load of approximately seven tons. He observed it as it approached about 25 to 30 feet, at a speed of approximately 20 to 25 miles per hour, and saw it veer to the right. Concluding that it was safe for him to cross, he proceeded at the rate of between 5 and 7 miles per hour, intending to turn left into Fifth Street. As he moved forward, he glanced to the right, and when he passed the line of the parked truck, he again looked toward the left. The front wheels of his machine had reached about the center of Fifth Street. He then noticed the moving truck about 40 to 50 feet away, and approaching at a much faster rate of speed than it had been maintaining upon his previous observation. Plaintiff could have stopped within 6 feet at this point, but he saw that he "had no chance" and would have been hit harder if he stopped, so he attempted to avoid the truck by proceeding and swerving left. The truck hit plaintiff's automobile at the left front door, and hurled it beyond the southeast corner of the intersection.
According to plaintiff's version of the occurrence, which was corroborated in large part by his brother and brother-in-law who were in another car behind plaintiff's, it certainly cannot be said, as a matter of law, that plaintiff did not act as a reasonably prudent man would have acted under the circumstances. While it is true that the driver of an automobile is required to come to a full stop before entering a through highway, and to yield the right of way to approaching vehicles, nevertheless he is not negligent in then proceeding, if "he is so far in advance that, in the exercise of reasonable care and prudence, he is justified in believing that he can cross ahead of the approaching vehicle without danger of a collision. . . . . .": Steckler v. Luty et al., 316 Pa. 440, 443. There was ample evidence in the present case to enable the jury to concur in plaintiff's conclusion that "it was safe for me to go across". Plaintiff then fulfilled his duty to "look and continue to look" as he proceeded across the intersection at low speed. He glanced right, as he was required to do on a two-way street: Bowers v. Gaglione, 322 Pa. 329, 332; and then again to the left. It was at this point that he became aware of his precarious position, caused, as may be inferred from the evidence, by the fact that defendant's driver had increased his speed rather than reducing it at the intersection. Although he was on a through highway, it was the truck driver's duty "to drive with due regard for the safety of vehicles entering such through highway. . . . . .": Act of May 1, 1929, P.L. 905, sec. 1014 (c), as amended by Act of June 22, 1931, P.L. 751, sec. 2, 75 PS, sec. 573(c). "The fact that . . . . . . a driver is on a through highway . . . . . . does not relieve him of his duty of care at intersections. . . . . .": Spear and Co. v. Altmyer, 124 Pa. Super. 9, 14. Plaintiff having reasonably concluded that he could cross Fifth Street safely, and having committed himself to the crossing, "was not bound to anticipate that the defendant would . . . . . . hasten rather than slacken his speed. . . . . .": Lewis v. Hermann, 112 Pa. Super. 338, 342. "It was reasonable for him to anticipate that the driver . . . . . . would reduce . . . . . . speed as [he] approached the regular crossing instead of accelerating it": Michener v. Lewis, 314 Pa. 156, 160.
Plaintiff's conduct in this case was very similar to that in Bowers v. Gaglione, supra, where the court said, at page 331: "It is difficult to see what plaintiff could have done that he omitted to do." Whether he should have stopped instead of proceeding after he saw the truck approaching at an increased rate of speed and at a distance of 40 to 50 feet away from him was for the jury to determine, for "mere failure to decide correctly on a course of action when unexpectedly confronted with sudden peril is not negligence per se": Ford v. Reinoehl, supra, 291-292.
Defendant's argument was based mainly on testimony of its own witnesses, whereas, as has already been pointed out, the evidence must be taken in the light most favorable to plaintiff. In addition, defendant stressed the contention that plaintiff's testimony on direct examination as to his actions prior to the collision was not entirely consistent with that on cross-examination. No material inconsistency is apparent on the record. But, even if such a conflict existed, as long as there was some evidence to support plaintiff's case, any inconsistency in the testimony was for the jury to resolve: Adams v. Gardiner, 306 Pa. 576, 585; Van Ronk v. Holland Laundry, Inc., 111 Pa. Super. 529, 533.
"Contributory negligence may be declared as a matter of law only in a clear case. . . . . .": Ford v. Reinoehl, supra, 290. No such case was here presented. On the contrary, the evidence fully warranted the jury in concluding that plaintiff did all that was required of him under the circumstances, and that the accident was caused solely by the negligence of defendant's driver. Accordingly, there was no basis for defendant's request for binding instructions, and, therefore, its motion for judgment n.o.v. was dismissed.
Defendant appealed.
Error assigned was refusal of judgment n.o.v.
Charles E. Kenworthey, for appellant.
Nochem S. Winnet, for appellee.
Argued October 11, 1939.
No appeal was taken from the order of the court of common pleas granting a new trial, on motion of the plaintiff, for inadequacy of the verdict. The order dismissing defendant's motion for judgment in its favor, non obstante veredicto, is affirmed on the opinion of Judge BROWN, who presided at the trial.