Appeal, No. 103, March T., 1950, from judgment of Court of Common Pleas of Erie County, Sept. T., 1949, No. 159, in case of Kenneth Wermeling v. Arthur Shattuck et al. Judgment reversed.
John M. Wolford, with him Franklin B. Hosbach and Hosbach & Good, for appellant.
John G. Gent, with him John B. Brooks and Brooks, Curtze & Silin, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
As a result of a collision between the plaintiff's sedan and a pickup truck owned by the defendant company and operated by defendant Shattuck on the company's business, the plaintiff brought this suit against the owner and driver of the truck, jointly, to recover damages for the personal injuries which he sustained in the accident. The jury returned a money verdict for the plaintiff. The defendants filed motions for a new trial and for judgment n.o.v. The court below, being of the opinion that the plaintiff was guilty of contributory negligence as a matter of law, entered judgment for the defendants n.o.v. from which the plaintiff has appealed. The court made no disposition, however, of the motion for a new trial.
Taking the evidence in the case and the reasonable inferences deducible therefrom in the light most favorable to the verdict, the following are the material facts attending the accident. The collision occurred about ten o'clock on a morning in May about six miles west of the City of Erie on U.S. Route 20 which is a two-lane main artery of vehicular travel, running generally east and west in the particular locality. The weather was clear and visibility good, but the black-top asphalt surface of Route 20 was wet from rain earlier that morning. At the place of the accident, which was in open country, Route 20 is intersected from the south by a dirt road known as McKee Road. The intersection is a T-intersection and not a crossing of Route 20. The dirt road is some twenty to twenty-five feet in width and consists of a "beaten track" whose boundaries are indistinguishable. On the one corner of the intersection there was a candy shop and on the other corner a "little grocery store". There was, at the time of the accident, a stop sign on McKee Road intended to control vehicles thereon approaching Route 20. There is no evidence, however, that that sign was at all visible
to travellers on Route 20. Or is there any evidence that there was a sign on Route 20 warning motorists or others of the existence of the intersecting side road. The plaintiff testified that he had no knowledge of the presence of the intersecting side road. Both the plaintiff and the driver of the truck were operating their automobiles westwardly along Route 20 with the plaintiff's car to the rear of the truck but overtaking it. According to the plaintiff's testimony, he was travelling at a speed of from forty-four to forty-eight miles per hour and the defendant's truck at a speed of approximately twenty miles per hour. The plaintiff sounded his horn and pulled onto the left, or eastbound, lane of Route 20 preparatory to passing the truck. When the plaintiff was about a car length back of the truck, but already in a position to pass it, the defendant driver, without giving any warning signal, suddenly turned left toward the entrance to McKee Road. As the truck got part way across the eastbound lane of Route 20, the plaintiff's car collided with the left rear wheel and fender of the truck in a glancing manner. The truck was spun around counter-clockwise and ended up facing west along the south edge of Route 20 just west of McKee Road. The plaintiff's car struck, and shattered, a wooden utility pole; and then came to rest. The pole stood two to three feet south of the south line of Route 20 about twenty feet west of McKee Road and was distant from the point of collision twenty-five feet.
The learned court below concluded that the plaintiff was guilty of contributory negligence as a matter of law on the grounds that the physical evidences of the collision at the scene indicated that the plaintiff was travelling at an excessive rate of speed at the time of the collision and that he was also attempting to pass the defendant's truck at an intersection in violation
of Sec. 1008(c) of The Vehicle Code of 1929, as ...