Franklin B. Hosbach, John M. Wolford and Hosbach & Good, all of Erie, for appellant.
Frederick F. Jones and Gifford, Graham, MacDonald & Illig, all of Erie, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 312]
In this right-angle collision case plaintiff appeals from the entry of judgment n.o.v. for defendant. The sole question for determination is whether the court erred in holding plaintiff guilty of contributory negligence as a matter of law.
On the morning of November 25, 1947, plaintiff was driving his automobile west on West 12th Street in the City of Erie. Snow was falling but visibility was good. The street was slushy and somewhat slippery. Plaintiff's car was the tenth in a funeral procession of eleven cars. A funeral flag was attached to his left front fender. At the intersection of West 12th Street and Liberty Street, over the center of which a traffic light was suspended, a motorcycle patrolman accompanying the procession halted traffic on Liberty Street and then, after the hearse and two cars had passed through, went on to the next intersection. Plaintiff, driving at a speed of from 10 to 15 m.p.h., looked to his left when he was about two or two and a half car lengths away from the intersection. He observed three cars which had stopped on Liberty. As he approached the crosswalk he again looked to his left and saw defendant's car, the second in line, pull out from behind the car in front of it and start through the intersection. Plaintiff, thinking that defendant was going to stop, did not apply his brakes until too late to avoid the collision. Defendant had reached, according to plaintiff, a speed of 30 m.p.h.
The testimony of plaintiff and his witnesses as to the status of the traffic light was conflicting. The testimony of plaintiff himself was not consistent. He testified on direct examination that as he approached the intersection the light was amber, and that it changed
[ 168 Pa. Super. Page 313]
to red as he entered the intersection; that as defendant came from behind the car in front of him 'the light changed from amber to red.' On cross-examination he was asked, '* * * as you approached the intersection * * * the light changed from amber to red?' He answered, 'That is correct.' On redirect examination, however, he testified that he was entering the intersection 'when the light changed from green to amber.' One of his witnesses testified that the light was amber when plaintiff entered the intersection. Accord-to two others, it was changing from amber to red.
Even when this conflict is resolved in plaintiff's favor, as it is required to be in view of the verdict, the most that can be said for him is that he had a qualified right to proceed. Section 1026 of The Vehicle Code of May 1, 1929, P.L. 905, as amended, 75 P.S. § 635, provides in part as follows: '(b) Whenever traffic at an intersection is alternately directed to stop and go, by the use of traffic signals, the colored lights shall indicate as follows * * * 2. Yellow, When Shown Alone. -- Traffic facing the signal shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety, a vehicle may be driven cautiously through the intersection.' (Italics supplied.)
Plaintiff's own testimony discloses his failure to comply with this provision. On cross-examination he testified as follows:
'Q. * * * you continued on through the intersection through the red light because you thought you had the right of way being in a funeral procession? A. Take it this way. If I didn't have the right of way at ...