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ZEIGLER v. GULLONG ET AL. (07/19/51)

July 19, 1951

ZEIGLER
v.
GULLONG ET AL.



COUNSEL

Wm. B. Arnold, Lancaster, for appellants.

Chas. W. Eaby, Lancaster, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 168 Pa. Super. Page 639]

ROSS, Judge.

This is a trespass action arising out of a motor vehicle collision between an automobile owned and operated by the plaintiff and a truck owned by the corporate defendant, Nu-Car Carriers, Inc., and driven by the individual defendant, Gullong. After a jury verdict in favor of the plaintiff and the defendants' motions for new trial and judgment n. o. v. were refused, this appeal was taken. The only motion before us is the one for judgment n. o. v., and the only question involved is whether the plaintiff was guilty of contributory negligence as a matter of law.

It is only in a clear case where the evidence is such that reasonable minded men can unite in the conclusion that a victim of an accident was negligent that a court is justified in declaring him negligent as a matter of law. McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217, 86 A.L.R. 1379; Stewart v. Pittsburgh, 157 Pa. Super. 347, 43 A.2d 393; Cox v. Scarazzo, 353 Pa. 14, 44 A.2d 294. The question of contributory negligence cannot be treated as one of law unless the facts and the inferences from them are free from doubt. If there is doubt as to either, the case is for the jury. Chidester v. City of Pittsburgh, 354 Pa. 417, 47 A.2d 130; Mogren v. Gadonas, 358 Pa. 507, 58 A.2d 150.

In considering the motion for judgment n. o. v., the evidence in the case, as a whole, is to be viewed in the light most favorable to the plaintiff, any conflict in the testimony being resolved in his favor and the benefit

[ 168 Pa. Super. Page 640]

    of every inference of fact, reasonably deducible from the evidence, being accorded him, and he is entitled to have the oral testimony supporting the verdict considered and all the rest rejected. Noyes v. Sternfeld, 164 Pa. Super. 461, 463, 65 A.2d 433. So considered, the relevant facts are as follows:

This right-angle collision occurred in Lancaster County at the point where the Harrisburg Pike is intersected by the East Petersburg Road. The Harrisburg Pike is a through dual highway running east and west and consisting of four concrete traffic lanes each eleven feet in width, the eastbound being separated from the westbound lanes by an island or divider four feet in width. The East Petersburg Road is a subordinate highway running north and south. The day on which the accident occurred was cloudy, but the roads were dry.

At approximately 9:40 a. m. on November 12, 1949, the plaintiff was proceeding north on East Petersburg Road and brought his car to a stop in obedience to a 'Stop -- Thru Traffic' sign at the southside of the Harrisburg Pike. He intended to cross the pike and continue north on the East Petersburg Road. After waiting for a car to pass him on the eastbound lanes, he looked to his right (east), observed the defendant's truck approaching from the east at 50 miles per hour 'a good quarter of a mile' from the intersection and started across the pike in second gear at a speed of ten miles an hour. After crossing the eastbound lanes, the plaintiff brought his car to a stop 'right at' the island or division strip and again looked to the right. At this time the plaintiff saw the defendant's truck 350 feet from the intersection. Thinking that he could clear ...


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