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MCMILLAN ET AL. v. MOR HEAT OIL & EQUIPMENT CO. (12/29/53)

December 29, 1953

MCMILLAN ET AL.
v.
MOR HEAT OIL & EQUIPMENT CO., INC.



COUNSEL

Ralph S. Croskey, Croskey & Edwards, Philadelphia, for appellant.

James C. Crumlish, Jr., Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Wright and Woodside, JJ.

Author: Wright

[ 174 Pa. Super. Page 309]

WRIGHT, Judge.

This is an appeal by defendant from the refusal of the court below to enter judgment n. o. v. after a verdict in favor of plaintiff Lee McMillan in a trespass action for personal injuries and property damage resulting from a motor vehicle collision. No appeal has been taken from the judgment entered on the verdict in favor of the minor plaintiff, Harold McMillan. It is our duty to review the testimony in the light most favorable to plaintiff appellee, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference of fact reasonably to be deduced from the evidence. Walters v. Kapiris, 159 Pa. Super. 170, 48 A.2d 35; Koren v. George, 159 Pa. Super. 182,

[ 174 Pa. Super. Page 31048]

A.2d 139. We must consider only the evidence supporting the verdict. Olson v. Swain, 163 Pa. Super. 101, 60 A.2d 548; Fuller v. Pennsylvania R. R. Co., 169 Pa. Super. 523, 83 A.2d 405.

The collision occurred at the intersection of Fourth and Pine Streets in Philadelphia. Fourth Street is one-way southbound. Pine Street is one-way eastbound. Each street has 12 foot pavements and a 26 foot cartway. There is a trolley track in the center of Fourth Street. On March 3, 1950, about 7:30 in the evening, appellee was driving his automobile south on the east side of Fourth Street. The night was dark, the weather clear, and the roadway dry. Appellee testified that he was traveling at 20 miles per hour. When he got even with the north house line of Pine Street, he looked to his right (the direction from which appellant's truck was approaching on Pine Street) and saw nothing. He took his foot off the accelerator, put it on the brake, and 'eased up into Pine Street'. When he reached the north curb line, he first saw the lights of the approaching truck. Appellee testified (Record 8a): 'Then, as the truck was coming, it looked like he was coming at a speed of thirty of thirty-five miles an hour. Well, I still held my feet on the brakes, and it looked like he was beginning to slow down to let me pass. At that time, when I got to the curb and I was going to the front of the curb, all of a sudden it looked like he wasn't going to stop. I put my foot on the gas to get out of his way. At the same instant I did that, he banged into the right side of my car'. And again (Record 10a):

'Q. What did you see when you got to the curbline? A. When I got to the curbline, I seen the lights of his car.

'Q. How far away? A. It seemed like he was 75 feet away.

'Q. Then what did you do?

[ 174 Pa. Super. Page ...


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