indicated'; but the jury clearly was not swayed by any thought that plaintiff was exonerating defendant, since the jury specifically found both drivers to have been negligent.
Plaintiff also assigns as error the failure of the Court to grant his second point for charge. That point was to the effect that a person driving his automobile in a residential section at an unlawful rate of speed forfeits any right of way which he might have. That this is the law of Pennsylvania is not in dispute; 75 P.S. 572(a). What must be ascertained is whether the charge adequately covered that principle for the purposes of this case.
The Court charged the jury, inter alia, that plaintiff asked it to find that defendant was negligent in entering the street intersection at an unsafe rate of speed; that the law of Pennsylvania requires an automobile driver to proceed with proper caution at street intersections; that normally, when neither vehicle has entered the intersection, the automobile on the right has the right of way to enter the intersection first; that the law required of defendant the exercise of due care under the circumstances; and that the burden of proving defendant negligent was on plaintiff, while that of proving plaintiff contributorily negligent was on defendant. When it is recalled that the jury affirmatively found both to have been negligent, and that the statute forfeiting the right of way is applicable only when two vehicles arrive simultaneously at an intersection, see Alperdt v. Paige, 1928, 292 Pa. 1, 5, 140 A. 555, 557, I believe that the charge of the Court was sufficiently comprehensive to vitiate the necessity of specifically commenting on the forfeiture provision. It is not inapposite to note that, although the testimony offered on behalf of plaintiff indicated that defendant was exceeding the speed limit, plaintiff also sought to prove that he had already entered the intersection - in which event there would be no question whether the automobile on the right had the right of way. Under the circumstances, I think the position of plaintiff was adequately protected when, in addition to the portions of the charge outlined above, the Court granted plaintiff's first point, which stated the legal restrictions as to speed. I am satisfied that the jury did not find plaintiff to have been contributorily negligent because it thought that defendant had the right of way even if defendant was exceeding the speed limit.
Plaintiff has also urged that the verdict was contrary to the weight of the evidence. The witnesses disagreed as to the vital factual issues, and I believe that their credibility was for the jury to decide. There is ample evidence to support the verdict.
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