John G. Gent and Brooks, Curtze and Silin, Erie, for appellant.
English & Baker, Samuel M. Baker, Erie, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 394]
From the granting of defendant's motion for judgment n. o. v. in this action of trespass for damages to an automobile owned by plaintiff, she has brought this appeal. The damages complained of resulted from a right-angle collision between her automobile and one owned
[ 167 Pa. Super. Page 395]
and operated by defendant. Her car, in which she was riding, was being operated by her brother-in-law, E. L. Strucher. The collision occurred at the intersection of Fourth Street and the east lane of Mohawk Drive in the City of Erie. Plaintiff's car was proceeding east on Fourth Street, and unpaved street 26 feet wide, and defendant's car was proceeding north in the east lane of Mohawk Drive, a 54-foot divided boulevard, with two traffic lanes, each 18 feet wide, separated by a grass plot, also 18 feet in width.
The collision happened about one o'clock in the afternoon of November 7, 1947, and there was nothing to prevent the driver of either machine from seeing the other in ample time to have avoided the collision. As stated by Linn, J., later Mr. Justice Linn, in Brayman v. DeWolf, 97 Pa. Super. 225, 226: 'In this case, as perhaps in most automobile collisions at right-angled street intersections, both parties were at fault.'
As the verdict was for plaintiff, she is entitled to the benefit of the testimony most favorable to her, not only on her own side, but also on the side of the defendant. Holland v. Kohn, 155 Pa. Super. 95, 38 A.2d 500. This rule of law, however, does not prevent the inference from the fact that she did not call the driver of her car to testify that his testimony, if he had been called, would not have been favorable to her. Harkins v. Varone, 306 Pa. 376, 159 A. 860; Wilkinson v. United Parcel Service of Pa., Inc. (No. 1), 158 Pa. Super. 22, 43 A.2d 408.
She testified that she herself first saw defendant's automobile 200 feet south of Fourth Street when her automobile was 18 feet west of the westerly line of Mohawk Drive. When she first saw it, she didn't pay any attention to how fast it was going. When she next saw it, it was 50 to 75 feet away and going 'about forth miles an hour'; her car was then 'almost past the center of the boulevard' going about 'twelve miles an hour.' According
[ 167 Pa. Super. Page 396]
to her testimony they continued at that rate of speed until just before the collision, when she told her brother-in-law that she didn't think defendant was going to stop, and that he, Strucher, than 'applied his brakes and turned left' but too late to prevent colliding with the other car. Defendant testified that as he neared the intersection he was driving only 20 miles per hour; and as that may be considered more favorable to plaintiff than ...