driver at the intersection of streets, where traffic is very dangerous because conflicting. He must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look, and see what is visible, before attempting to cross the intersecting street. This duty has not been relaxed by the introduction of traffic officers and signals, both of which are intended to facilitate traffic and render crossings less dangerous." The Court said, further, in regard to contributory negligence: "As to appellants Magan and the Fire Insurance Patrol, the court below thought there could be no recovery for the additional reason that Magan admitted he 'did not look to the side', as he approached the intersection, but was 'looking straight ahead.' We are unable to conclude that this is necessarily so. 'The test for contributory negligence is whether the act (alleged as) constituting the negligence contributed in any degree to the production of the injury.'"
In Maio Ex'rx v. Fahs et al. 339 Pa. 180, at page 186, 14 A.2d 105, at page 108, an intersection accident case, the Court said: "The right-of-way right of a vehicle on the 'through highway' is a qualified one, and if the driver fails to observe the ordinary precautions in regard to speed and control of his vehicle and keeping a lookout for cars approaching an intersection, he may be held to be negligent. Mathiasen v. Brennan, 318 Pa. 577, 179 A. 438; Stegner et al. v. Florini, 3 Cir., 103 F.2d 980. The question of negligence in the case of such a violation of the Motor Vehicle Code is for the jury. Rhinehart v. Jordan et al., 313 Pa. 197, 169 A. 151."
In Gruskin v. Stitt, 339 Pa. 137, 139, 140, 13 A.2d 412, 413, the Supreme Court stated: "Defendant contends that plaintiff's testimony convicts her of contributory negligence as a matter of law because it shows that, although she observed defendant's truck approaching before she entered the through highway, she failed in her duty to continue to look as she made the left turn. This contention must fail because it is based upon an inference unwarranted by the evidence. The mere fact that plaintiff was unable to recollect her actions as she advanced upon the crossing from the 'stop' sign would not justify a conclusion by the jury that she neglected to keep a watchful eye upon the oncoming vehicle. This is particularly true since the absence of such testimony on her part is attributable to the injury which she received in the accident."
In Rankin v. Boyle, 328 Pa. 284, 287, 195 A. 36, 37, the Supreme Court stated: "Having the right of way, she could assume that the driver of the oncoming automobile would approach at a moderate speed with his car under control. She was not required to anticipate and guard against the want of ordinary care on the part of such a driver."
See Renz v. Hazlett, 330 Pa. 306, 198 A. 675, wherein it was held that the doctrine of incontrovertible physical facts was not applicable and that the plaintiff's contributory negligence was a question for the jury.
Plaintiff had the right to assume that defendant would observe the law and perform his duty as a driver in driving to and across the intersection, where the accident happened. At the speed defendant was driving (60 miles per hour), within two seconds after he could have been seen by plaintiff the accident happened. Plaintiff, in the operation of his automobile at the rate of 30 miles per hour may have reached the point of the accident from the place where he could have first seen defendant's automobile without seeing it if he first looked to the right, then to the left and then back again. See Cunningham v. Spangler, 123 Pa.Super. 151, 157, 186 A. 173.
Under the facts as disclosed by the evidence offered by the plaintiff and the different inferences which can be reasonably drawn therefrom, the Court cannot say that such evidence clearly establishes that plaintiff was guilty of negligence and that said negligence contributed to the accident. The question, therefore, was one of fact for the jury and not one of law for the Court.
Defendant in its motion for a new trial contends that the verdicts are against the weight of the evidence. This contention cannot be sustained. The credibility of the witnesses was for the jury. The Court cannot say that the credible evidence showed that the weight of the evidence was against the verdict.
Defendant also contended in the action at No. 1971, where damages were sought by reason of the death of plaintiff's wife, that the damages were excessive in the amount allowed of $10,000, and that therefore a new trial should be granted. No case has been brought to our attention where a new trial has been granted under damage facts similar to the present case. The plaintiff's wife was 56 years of age at the time of the accident; she was an educated woman; she had acted as secretary for at least two companies prior to her marriage; she assisted her husband with his duties as a salesman; she did the housework and she furnished companionship and society for the plaintiff. The funeral bill was $873.50. I am of the opinion that the verdict of the jury as to the amount of the damages should not be disturbed.
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