The opinion of the court was delivered by: WATSON
This is an action by plaintiff under the Pennsylvania 'Wrongful Death' Statutes
and the Pennsylvania 'Survival' Statute
to recover damages for the death of Frank B. Pickle, her husband. At the trial of the action, after plaintiff had completed the presentation of her evidence, the Court granted defendant's motion for dismissal on the ground that upon the facts and the law the plaintiff had shown no right to relief. Plaintiff has now moved to set aside the order of dismissal and to grant a new trial.
The questions before the Court are:
Was the question of defendant's negligence a question for the jury and not one for the Court to decide as a matter of law?
Was the question of decedent's contributory negligence a question for the jury and not one for the Court to decide as a matter of law?
On June 8, 1949, at or about 9:30 P.M., the decedent, a man of 64 years of age, was walking in a westerly direction on West Patterson Street in Lansford, Pennsylvania, when he was hit from the rear by defendant's automobile, which was also traveling in a westerly direction. The decedent apparently was walking to his home, which was located on the north side of West Patterson Street, about one block west of the scene of the accident.
West Patterson Street is the main street leading from Lansford to Coaldale and is a two lane concrete highway 18 to 20 feet wide, with a black macadam berm about 18 inches wide adjacent to the north lane. There is a slight incline in the highway as you approach the place of the accident in a westerly direction from the intersection of West Patterson and Courtwright Streets. On the South side of the highway, beginning at the intersection of West Patterson and Courtwright Streets, there was a continuous paved sidewalk, which ran along the length of the Lansford Stadium for a block, and continued on for another block. On the north side of the highway there was no paved sidewalk, merely a dirt or gravel bed extending approximately 15 feet in width from the edge of the highway to a vacant lot to the north.
At some time prior to the date of the accident, a trench was dug on the north shoulder of West Patterson for the purpose of laying a new water main. The trench began at a point 4 to 6 feet west of the intersection of West Patterson and Courtwright Streets and ran parallel with the highway for about half a block, extending beyond the place of the accident. The trench was approximately 3 feet in width and located about one foot north of the edge of the macadam berm. The trench, however, had been filled in a day or two before the accident, and according to plaintiff's witness was 'still loose'.
John R. Duke, one of plaintiff's witnesses, prior to and at the time of the accident, was standing on the north side of West Patterson Street and about 10 feet west of the intersection of West Patterson and Courtwright Streets. He observed the decedent walk by him and stated that the decedent was walking in a manner so that one foot was on the macadam berm and one foot was on the concrete. He did not vary his course, but continued to walk westwardly in a straight direction for about 25 or 30 feet, at which point he was hit from the rear by defendant's automobile.
The defendant was traveling in a westerly direction toward his home in Coaldale. He stated he was traveling at a speed of 25 miles per hour, which was the speed limit on West Patterson Street. The headlights of his automobile were on, and he admits seeing the decedent walking on the highway when he was 60 to 80 feet away. Because of the approach of an automobile from the opposite direction, defendant momentarily took his eyes off the decedent. When he next observed the decedent, he was only 3 to 4 feet away. Defendant swerved to the left to avoid hitting him, but struck the defendant with the right front fender and headlight portion of his automobile. After the impact, defendant's automobile traveled 27 feet before coming to a stop. The defendant admits he did not sound his horn.
Plaintiff's witness, John R. Duke, on cross-examination, stated that defendant was traveling on the right side of the highway with his right wheels about 4 feet in from the edge of the concrete, and that defendant continued to occupy such, a position on the highway at the time he swerved left in an attempt to avoid hitting the decedent. On re-direct examination, the witness changed his testimony somewhat, placing defendant's right wheels about 2 feet in from the edge of the concrete.
It appears to the Court that a reasonable doubt does exist as to the inferences that may be drawn from the oral evidence presented at the trial and that the defendant's negligence was therefore a question for the jury. Though the accident itself does not determine defendant's negligence, the evidence was such as to require the submission of that question to the jury. In the case of King et al. v. Brillhart, 1921, 271 Pa. 301, 114 A. 515, 516, the Supreme Court of Pennsylvania stated, 'To drive into a pedestrian, who is in full view, and does not suddenly change his course, is evidence of negligence * * *.' Whether or not the evidence tending to prove these facts was worthy of credit was properly for the jury to decide.
The more vital question, however, is the presence or absence of negligence on the part of the decedent himself, and more specifically, whether the Court could find such as a matter of law. Contributory negligence will be declared as a matter of law only when it is so clear that there is no room for fair and reasonable disagreement as to its existence. Szukics v. Ruch, supra.
It is a well established rule of law in Pennsylvania that in the absence of sidewalks it is not negligence for one to walk along the paved portion of a rural highway, for the rights of pedestrians upon such a highway are equal to those of motor vehicles. Neidlinger et ux. v. Haines, 1938, 331 Pa. 529, 200 A. 581; King et al. v. Brillhart, supra; Petrie v. E. A. Myers Co., 1920, 269 Pa. 134, 112 A. 240. Nor is the pedestrian walking along the right side of the paved roadway required to turn and look for approaching traffic, or step off the highway to permit the automobile to pass. Dennis v. Munyan, 1939, 139 Pa.Super. 310, 11 A.2d 566. Whether the pedestrian should face vehicular traffic instead of walking with his back to it is likewise a question for the jury. While it has ...