Ralph M. Barley, Paul A. Mueller, Lancaster, for appellant.
Arnold, Bricker & Beyer, John W. Beyer, Lancaster, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 148]
This is a trespass action involving an intersection collision between automobiles owned and operated by the parties. The jury returned a verdict for the plaintiff and after defendant's motion for judgment n. o. v. was refused, she took this appeal.
We shall examine the testimony, as we must on a motion for judgment n. o. v., in the light most advantageous to the plaintiff. He must be given the benefit of every fact and every reasonable inference of fact arising therefrom and any conflict in the evidence must be resolved in his favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232; Menzel v. Lamproplos, 168 Pa. Super. 329, 77 A.2d 645. Thus viewed, the evidence establishes the following facts:
The collision which gave rise to this action occurred in Lancaster County at the intersection of a road running north and south between Fairland and Lime Rock, and one running east and west between Manheim and Lititz. The intersection is in open country and neither road is controlled by a stop sign or traffic light. About 75 feet to the west of the Fairland-Lime Rock road and about 20 feet south of the Manheim-Lititz road there is a chicken house of undisclosed dimensions. There is a 'slight' down grade on the Manheim-Lititz road immediately west of the chicken house. At the southwest corner of the intersection there is a Coca Cola sign about 2 or 2 1/2 feet wide. The day on which the accident occurred was clear and the roads were dry.
The plaintiff, traveling north on the Fairland-Lime Rock road, approached the intersection at about 2 p. m. on October 10, 1946. He 'slowed down' and when he was within 3 or 4 feet of the intersection -- 'where I
[ 169 Pa. Super. Page 149]
could see past the Coca Cola sign' -- looked to his left and, seeing no car approaching from the west, entered the intersection. Then he looked to his right, saw an automobile approaching from that direction but believing it at a safe distance -- as it was -- proceeded to cross the westbound lane of the road and looked to his left again, at which time he observed the defendant's car bearing down on him from the west, on her left -- or wrong -- side of the road. Almost immediately thereafter the collision occurred. At the point of impact, the front wheels of plaintiff's car had entirely cleared the intersection, the car being struck about the middle of the left side.
Appellant's principal contention is that plaintiff was guilty of contributory negligence as a matter of law. She advanced no evidence of it at the trial, and now requests us to find contributory negligence so clearly revealed in plaintiff's evidence -- by implication, from an alleged failure of proof on plaintiff's part to show his freedom from it -- as to call for a determination by us of its existence. Circuit Judge (now Mr. Justice) Jones has set forth a clear explanation of the operation of the rule as to burden of proof of contributory negligence in Alcaro v. Jean Jordeau, Inc., 3 Cir., 138 F.2d 767, 770. We quote: 'Under Pennsylvania's rule it is the defendant's burden to establish the plaintiff's contributory negligence. * * * In meeting that burden, the defendant may of course avail himself of any material evidence in the record even by taking recourse to the plaintiff's evidence * * * but the burden of satisfying the jury by a preponderance of the evidence that the plaintiff was guilty of contributory ...