Appeals, Nos. 83 and 84, Jan. T., 1955, from order of Court of Common Pleas of Adams County, Aug. T., 1951, No. 122, in case of Joseph J. Ratcliff v. Sterling Myers and Albert Myers et al. Order affirmed.
Edward B. Bulleit, with him Bulleit & Bulleit, for appellants.
frank B. Boyle, with him Markowitz, Liverant, Boyle, Rahauser & Kagen, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
In these proceedings, initially instituted to recover damages arising from a right angle collision between two automobiles, the verdict of the jury has brought about an illogical and therefore untenable result.
At about eleven o'clock in the morning of a clear March day, one Lawrence Yost was driving a Packard car south on Highway Route 194 in the Borough of East Berlin, Adams County. At the same time one Sterling Myers was operating a Chevrolet car west on Highway Route 234 in that Borough. The two cars collided at the intersection of these two highways which forms the "Center Square" of the Borough. Joseph Ratcliff, a passenger in the Yost car, was injured in the collision and brought suit to recover damages against Sterling Myers and the latter's father, Albert, on whose business Sterling was driving the Chevrolet. The defendants brought in Yost and his employer, the Bryant Air Conditioning Corporation, as additional defendants. In so joining them Sterling Myers claimed also to recover from them the damages which he himself had suffered in the accident, and Albert Myers claimed to recover the damages to his automobile. Yost, on the other hand, filed a counterclaim against Sterling
and Albert Myers to recover the damage to his automobile.
The court allowed the jury to view the scene of the accident. The testimony at the trial disclosed that the two automobiles, each proceeding at a reasonably low rate of speed and traveling on the right side of their respective roadways, reached the intersection at about the same time. They met at or near the center of the intersection, the left front of the Yost car and the right front of the Myers car coming into contact. There was a traffic light overhanging the center of the intersection; it showed a green light for Myers proceeding westward on Route 234 but no light at all to Yost coming south on Route 194 as the red light was out of order and was not functioning. Yost testified that as he started to enter the intersection he could see about 40 or 50 feet to his left; he looked and saw nothing coming; he went ahead and when he was about half way into the intersection he looked again and the Myers car was then about 20 feet away. Sterling Myers testified that he looked, saw the green light in his favor, and the next thing he knew he "was in the intersection and we were in collision"; he said that when he first noticed the Yost car "seeing and hitting was just one."
The trial judge held that Sterling Myers was guilty of contributory negligence as a matter of law and entered compulsory nonsuits as to his and his father's claims against the additional defendants. However, he left to the jury to determine, in plaintiff's action against the original defendants, whether Myers was in fact negligent. He also submitted to the jury whether Yost was negligent, and whether plaintiff was entitled to recovery against the original defendants, the additional defendants, or both, and whether Yost was entitled to recover on his counterclaim. The jury returned
a verdict in favor of the plaintiff in the sum of $12,500 against the additional defendants, Yost and the Bryant Corporation, but a verdict in favor of the original defendants, Sterling and Albert Myers. The latter moved to take off the compulsory non-suit entered in their actions against the additional defendants; this motion the court denied. The additional defendants moved for judgment n.o.v. against the original defendants with respect to plaintiff's claim and also with respect to Yost's counterclaim; this motion the court also denied. The additional defendants also moved for a new trial on the ground that the court should have charged the jury that the original defendants were negligent as a matter of law and therefore jointly liable to the plaintiff with the additional defendants; the court granted a new trial, limiting the issue to the liability of the original defendants in conjunction with that of the additional defendants for the happening of the accident. Two appeals to this court have resulted from those rulings, - one, that of the original defendants from the grant of a new trial; the other, that of the additional defendants from the refusal of their motion for judgment n.o.v. against the original defendants.
It must be immediately apparent that, as the result of the jury's verdict, there exists an anomalous situation in that, on the one hand, the court declared that Sterling Myers was guilty of contributory negligence as a matter of law and that therefore he could not recover from the additional defendants, but, on the other hand, the Jury found him not guilty of negligence as a matter of fact and therefore the plaintiff could not recover from him and his father. Certainly he was either negligent or not negligent, and his legal rights and liabilities in relation to all the other parties involved
in the accident should follow a consistent pattern. The court, recognizing this, and obviously and properly regarding the jury's verdict exculpating Sterling Myers as perverse, granted a new trial in order to have a jury again pass on the fact of his negligence.
Was the court right in declaring Sterling Myers negligent as a matter of law in the matter of his claim against the additional defendants? It is well established that an operator of a motor vehicle who does not look for moving traffic on an intersecting street as he approaches the intersection is guilty of negligence as a matter of law even though he proceeds across the intersecting street with a traffic light in his favor: Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382. Myers himself admitted that "seeing and hitting was one," which is proof positive that he could not have looked up Highway Route 194 before entering the intersection; it must also be borne in mind that the Yost car, coming from the right, had the right of way. It is true that the jury viewed the scene of the accident but this was merely in order to enable them the better to understand the testimony and to visualize the occurrence; if they saw anything which might tend to relieve Myers of liability it is not a part of the record and cannot weigh against the evidence. The court was therefore justified in declaring Myers guilty of contributory negligence as a matter of law, and indeed ...