Albert M. Hankin, Harry H. Wexelblatt, Milford J. Meyer, and Meyer, Lasch, Hankin & Poul, all of Philadelphia, for appellant.
Ralph S. Croskey, and Croskey & Edwards, all of Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 113]
In this trespass action for personal injuries the jury found for the plaintiff in the sum of $2,500. The lower court however on reconsideration of the question of the right of recovery concluded that the plaintiff was chargeable with contributory negligence as a matter of law and on that ground entered judgment for defendant n.o.v. The judgment must be affirmed.
At about 7:30 in the morning of December 1, 1949, plaintiff left a passenger bus at the regular stop in the west line of Broad Street in Philadelphia just north of the driveway into the North Philadelphia Station
[ 170 Pa. Super. Page 114]
of the Pennsylvania Railroad. A short distance south of the driveway Glenwood Avenue crosses Broad Street in a northeasterly direction. Cambria Street also enters Broad Street at right angles from the east at this intersection. Plaintiff was familiar with the neighborhood and had notice of the usually heavy traffic on Broad Street; he left the bus at the same place every morning on his way to work. Just prior to his injury he walked in front of the standing bus and in attempting to cross Broad Street to the east at Cambria Street, on the regular pedestrian crossing, he was struck by defendant's truck which was then traveling south into the intersection.
On direct examination plaintiff said that after he stepped onto the pavement and started to cross 'all I know I was hit'. And when asked: 'Did you notice any lights, traffic lights?' his answer was: 'I don't remember'. There is no contention however that his mind was a blank because of his injuries. His lack of recollection, under his testimony as a whole, is attributable to his failure to observe conditions in the intersection before committing himself to the crossway. Therefore he is not entitled to the benefit of a presumption of due care for failure of memory on the principle of Heaps v. Southern Pa. Traction Co., 276 Pa. 551, 120 A. 548. Even a presumption of due care must give way when a plaintiff's evidence convicts him of contributory negligence. Wickline v. Pennsylvania R. R. Co., 347 Pa. 136, 31 A.2d 535. Accordingly a plaintiff's contributory negligence may be established by his answers on cross-examination which contradict an assertion in his direct testimony of lack of memory as to the facts. Cf. Black et al. v. Philadelphia R. T. Co., 239 Pa. 463, 86 A. 1066.
Under the circumstances in the present case it is plaintiff's final statements on cross-examination which
[ 170 Pa. Super. Page 115]
are controlling, Cf. Stewart et vir. v. Ray et al., 366 Pa. 134, 143, 76 A.2d 628, and they clearly convict him of contributory negligence barring recovery. On cross-examination plaintiff testified 'I seen the light was green and then I started' to cross Broad Street. But he immediately robbed the statement of probative value by admitting that he 'didn't look to see what the light was, or what color it was'. Following his further statement that he did not remember whether he looked for automobiles coming south ...