William S. McLean, Wilkes-Barre, for appellant.
J. Campbell Collins, John H. Collins, Collins & Collins, Wilkes-Barre, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 172 Pa. Super. Page 637]
On April 3, 1950, about 1:30 a.m. plaintiff Richardson was operating his automobile west on Sullivan Street in the City of Wilkes-Barre. At the same time a truck of defendant Wilkes-Barre Transit Corporation was being operated by one of its employees north
[ 172 Pa. Super. Page 638]
on South Franklin Street. At the intersection in question there was a stop sign for traffic on Sullivan Street. The two motor vehicles came into collision, and suit followed. The jury returned a verdict for plaintiff in amount of $1,500 covering property damage and personal injury. This appeal is from the refusal of the lower court to enter judgment n.o.v. or to grant a new trial. Our conclusion is that the case was properly decided by the court below.
So far as its motion for judgment n.o.v. is concerned, appellant contends first that the indisputable physical evidence constructively demonstrates the falseness of plaintiff's testimony; and second that the plaintiff's case reveals contributory negligence as a matter of law. In considering a motion for judgment non obstante veredicto, the testimony must be viewed in the light most advantageous to the party who has the verdict, giving him the benefit of every reasonable inference of fact arising therefrom and resolving any conflict in the evidence in his favor. Miller v. Hickey, 368 Pa. 317, 81 A.2d 910.
Plaintiff's testimony was that he stopped at the curb and looked left and right, then drove seven feet into the intersection, stopped, and again looked left and right. He then proceeded across the intersection, looking again to the left and right as the front of his car reached the middle of South Franklin Street. Defendant's truck approached on the west or wrong side of South Franklin Street, with dim lights, and at an excessive speed.
Defendant's position is that photographs of the damage to its truck establish that the collision could not have happened as testified to by the plaintiff. We have examined the photographs in question and they do not conclusively establish how the collision occurred. That question was properly submitted to the jury. It is
[ 172 Pa. Super. Page 639]
well settled that the incontrovertible physical facts rule has no relevancy where the testimony of witnesses is needed in order to apply those facts to the issue in the case. DiGregorio Admr. v. Skinner, 351 Pa. 441, 41 A.2d 649. Whether the testimony of defendant was more believable than that of plaintiff, in the light of the incontrovertible physical facts with respect to the damage to the motor vehicles, ...