Appeal, No. 186, March T., 1952, from judgment of Court of Common Pleas of Armstrong County, Dec. T., 1949, No. 132, in case of Sara Levine et vir. v. Reuben I. Mervis. Judgment affirmed.
W. Davis Graham, for appellant.
Robert E. Ashe, with him W. A. Ashe, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This is an action of trespass for recovery of damages for injuries to plaintiff-wife resulting from a collision between a car operated by one Fozard and defendant's automobile in which plaintiff-wife was a guest-passenger. Verdict and judgment were for plaintiffs, and defendant appeals from refusal of judgment n.o.v.
All of the testimony was produced by the plaintiffs; the defendant did not testify nor did he offer any testimony. Interpreting this evidence in a light most favorable to the plaintiffs, as we must, the following facts are established: On a clear, dry day, defendant was
proceeding in a northerly and Fozard in a southerly direction on a 3-lane, concrete highway. The collision occurred on a level stretch of the road, from which point there was an unobstructed view of 1/2 mile in either direction.
Both drivers had been traveling in their own respective right lanes. Three cars, proceeding in the same direction, were in front of Fozard, while a car in front of defendant was traveling in his same direction at a distance estimated as "room for two or three cars to be traveling." The defendant's speed was "moderate"; and the only estimate of Fozard's speed was his own guess that "with the weight on my car, I would say not more than thirty or thirty-five, at most, with the damage done to the other car;... I couldn't have been traveling very fast."
When the two cars were "more than the length of this Court Room" from each other, plaintiff-wife saw the Fozard car "swerve out of his lane of traffic a little bit, and go back in." She observed that defendant had not seen it. "He was playing the radio... dialing and tuning." She then saw that Fozard again slowly left his lane, "knew he [defendant] hadn't noticed it, because he was dialing" and said, "Look out for that car." Defendant then looked up, saw the Fozard car, and veered into the center lane at the same time that Fozard attempted to return to his own lane. Each again changed course, and finally collided, with defendant's car partially in his own and center lane and Fozard partially in defendant's lane of travel. Plaintiff-wife testified that when defendant did see Fozard, "he had time ...