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RASMUSSEN v. DRESNIN. (05/23/55)

May 23, 1955

RASMUSSEN
v.
DRESNIN.



Appeals, Nos. 137 and 138, Jan. T., 1955, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1953, No. 3869, in case of Estelle Rasmussen, Exrx., Estate of George Rasmussen, Deceased, and Estelle Rasmussen v. Reba Dresnin. Judgment reversed.

COUNSEL

Harry C. Liebman, for appellants.

F. X. McClanaghan, with him Cogan & McClanaghan, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 382 Pa. Page 52]

OPINION BY MR. JUSTICE MUSMANNO, May 23, 1955:

When Mrs. Estelle Rasmussen, the wife-plaintiff in this case, driving her car westwardly on Whitby Avenue in Philadelphia, arrived at a point 3 feet from Whitby's intersection with 57th Street, she saw a car (to be referred here as the Dresnin car) 68 feet to her left on 57th Street moving toward the same intersection. Having a green light, Mrs. Rasmussen proceeded unabatedly ahead. When she reached the middle of the crossing she noted that the Dresnin car was heading directly toward her. She attempted to avoid the heralded collision by accelerating her speed and thus shot ahead, but the Dresnin car continued on its forward course and struck the plaintiff's car when she had only 5 feet more to go before reaching the safety of the west curbline of 57th Street. On this state of facts the Court below, in a trespass action brought by

[ 382 Pa. Page 53]

Mrs. Rasmussen and her husband*fn* against Mrs. Dresnin, entered a non-suit on the theory that Mrs. Rasmussen was guilty of contributory negligence as a matter of law.

The non-suit was improvidently entered. In accordance with the Motor Vehicle Code (Act of May 1, 1929, P.L. 905, Sec. 1026, 75 Purdon's P.S.A.), Mrs. Rasmussen had the right of way under three different provisions of the Act: (1) She had a green light. (Sec. 905) (2) She approached the intersection from the right. (Sec. 1013, a). (3) She entered the intersection first. (Sec. 1013, b).

While it is true that a motorist, even with a traffic light in his favor, may not blindly dash into an intersection, he is not required to anticipate that other motorists will violate the law. What was said in the case of Sommer v. Blacka, 153 Pa. Super.Ct. 643, 645, could well apply here: "A motorist need not anticipate that after he is committed to the crossing another will travel 50 to 60 feet to the intersection, pass a red light and run into him."

In Swift v. Corrado, 292 Pa. 543, 547, this Court said: "... plaintiff being first at the crossing and having the right of way was not bound to keep out of defendant's way; but on the other hand, defendant was bound to keep out of his way and, as above stated, plaintiff had the right to assume he would do so."

The principle embodied in the case of Clark v. Philadelphia Housing Authority, 161 Pa. Superior Ct. 542, 544, is applicable here: "We think this is a plain case where plaintiff's contributory negligence could not be declared as a matter of law. Plaintiff was entitled to the protection afforded her by ...


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