Appeal, No. 40, Jan. T., 1955, from judgment of Court of Common Pleas of Schuylkill County, July T., 1951, No. 420, in case of Adele Yurkonis, Admrx., Estate of Clarence Yurkonis, Deceased, v. Robert Dougherty. Judgment reversed.
Henry Houck, with him W. J. Krencewicz, for appellant.
J. W. P. Burke, with him P. H. Burke and Burke & Burke, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff appeals from the refusal of her motion for new trial in this action of trespass. The action was brought to recover damages for injuries and death of decedent, who was fatally injured as a result of being struck by an automobile operated by defendant. The case was submitted to the jury, which found both defendant and decedent negligent.
To overcome defendant's testimony as to contributory negligence, plaintiff relied upon circumstances and inferences, as well as upon the presumption that the decedent used due care.
Plaintiff alleges several trial errors, all of which relate to the charge of the court.
The accident occurred at approximately midnight on July 1, 1950, on Lehigh Avenue, a macadam street some 55 feet in width, in the borough of Frackville. As defendant approached a point approximately 150 feet from decedent, he saw decedent in the middle of the street, between intersections, in the act of crossing
from defendant's left to his right. Defendant testified that he was travelling about 30 to 35 miles per hour; that decedent was standing as if to await defendant's passing; that decedent looked at him when defendant was about 25 to 50 feet away; that when he was 7 to 10 feet away, decedent "darted out in front" of him, was struck by the right front of the car (fender and hood) and rolled off to within 3 feet of the curb to defendant's right. He testified: "He darted out in front of me, or walked out, whatever you want to call it, but he didn't leave the middle of the highway until I go between five and seven feet away from him." He also testified that he had not sounded his horn, but that he had reduced his speed upon seeing decedent, and had also swerved to his left to try to avoid him, there being cars parked on his right at the curb. In addition, he produced photographs of the scene, and presented oral testimony consisting of the "judgment" of witnesses as to distances involved.
Plaintiff's testimony was to the effect that defendant had admitted a speed of 45 to 50 miles per hour, and that he had done some drinking just prior to the occurrence; that there were no cars parked at or near the place of accident. A witness for plaintiff, who lived across the street from where the accident occurred, testified that the crash sounded as though two cars had collided; that he immediately ran out and saw the decedent's body at the curb and defendant's ...