Henry T. Reath, John B. Martin, Duane, Morris & Hecksher, Philadelphia, for appellant.
Francis E. Marshall, Thomas E. Comber, Jr., Pepper, Bodine, Stokes & Hamilton, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 175 Pa. Super. Page 505]
This is an appeal from an order of the court below entering judgment n. o. v. after a verdict for the plaintiff in a trespass action arising out of an automobile collision. We must view the testimony in the light most advantageous
[ 175 Pa. Super. Page 506]
to the party having the verdict, giving him the benefit of every reasonable inference of fact arising therefrom. Miller v. Hickey, 368 Pa. 317, 81 A.2d 910.
The collision in question occurred at seven o'clock p. m. on August 6, 1951. It was daylight, and the weather was clear. Appellant was proceeding north on Forrest Avenue in the City of Philadelphia, approaching a right angle intersection with Wadsworth Avenue. Both are two-way streets, with paved surfaces and without trolley tracks. Forrest Avenue is 36 feet wide between curb lines, with 12 foot sidewalks. Wadsworth Avenue is 42 feet wide between curb lines, with 14 foot sidewalks. The intersection in question is not controlled by traffic lights or stop signs. When appellant was 20 feet south of the south curb of Wadsworth Avenue, he looked to his right and saw appellee's car 290 feet away, proceeding west at a speed of 25 to 30 miles per hour. When appellant reached the south curb of Wadsworth Avenue, he again looked to his right and saw appellee's car at a distance of 150 to 160 feet, travelling at 30 to 35 miles per hour. Finally, when appellant was 'a little bit across the middle of the intersection * * * one-third of the length of my car', he looked for a third time and 'got a glimpse of' appellee coming 'like a flash of lightning'. Appellant testified that his own speed as he approached the intersection was 15 miles per hour, that he increased this speed to 20 miles per hour as he entered the intersection, and that, when he last saw appellee, he 'jammed on the gas' in the hope that appellee would pass to his rear. Appellant's car was struck at the middle of the front door on the right side.
Counsel for appellant contends that the 'question here is whether the plaintiff in crossing a two-way street made an observation for traffic coming from his
[ 175 Pa. Super. Page 507]
right, not only at the curb line, but again at the middle of the intersecting street, to determine whether, under the circumstances, it was safe for him to continue across'. It is of course well settled that a driver entering a two-way street must look first to his left and then to his right, and that he must look again to his right as he nears the middle of the street. Richardson v. Wilkes-barre Transit Corp., 172 Pa. Super. 636, 95 A.2d 365. In the case at bar, however, appellant should not have entered the intersection at all unless he was prepared to stop at the center. Assuming arguendo that appellant did look to his right again as he neared the middle of the street, it was then too late since he could not stop. In the words of Judge Alessandroni in his charge to the jury: 'Obviously, when the plaintiff saw the car the third time nothing could be done about it; a collision was bound to happen'.
Although contributory negligence should be declared as a matter of law only when it is so clearly revealed that fair and reasonable persons could not disagree as to its existence, Carden v. Philadelphia Transportation Co., 351 Pa. 407, 41 A.2d 667; Steffenson v. Lehigh Valley Transit Co., 361 Pa. 317, 64 A.2d 785; Gogel v. Bayer, 165 Pa. Super. 491, 69 A.2d 161, we are entirely in accord with the conclusion of President Judge Smith of the court below that appellant must be denied recovery because he attempted to cross Wadsworth Avenue 'when it would have been apparent to any reasonable man, that if he proceeded on, a collision was inevitable'. In the words of President Judge Trexler in Primio v. Haertter, 115 Pa. Super. 564, ...