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STEWART v. SCHARFF (07/21/55)

July 21, 1955

STEWART
v.
SCHARFF, APPELLANT.



Appeal, No. 162, April T., 1954, from judgment of Court of Common Pleas of Allegheny County, April T., 1951, No. 2531, in case of Jeanette R. Stewart et vir v. Fred A. Scharff. Judgment affirmed.

COUNSEL

Kim Darragh, for appellant.

P. J. McArdle, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, and Wright, JJ. (woodside and Ervin, JJ., absent).

Author: Wright

[ 178 Pa. Super. Page 630]

OPINION BY WRIGHT, J.

We are here concerned with a trespass action resulting from a collision between automobiles of Clyde F. Stewart and Fred A. Scharff. After verdicts for the plaintiffs, Stewart and his wife, the lower Court refused defendant Scharff's motion for judgment n.o.v. and ordered a new trial. Scharff has appealed from the refusal of his motion, contending that there was a fatal variance between the allegata and the probata.

The complaint makes inter alia the following averments: "Third: On or about the 12th day of February, 1950, wife plaintiff was operating her automobile in a southerly direction on Grandview Avenue and when she reached the intersection of Grandview Avenue and Neville Island Boulevard, proceeding with due care and caution, she entered said intersection, after having first stopped and proceeded to make a left-hand turn in a westerly direction on the Boulevand, when a car owned and operated by the defendant, which was proceeding in an easterly direction on the Boulevard, swung from the lane of traffic in which it was proceeding over to the middle lane, running into and colliding with the automobile of the plaintiff and inflicting upon her severe and permanent injuries. Fourth: Plaintiffs aver that the aforesaid accident was caused solely by the negligence of the defendant, generally, and as more

[ 178 Pa. Super. Page 631]

    specifically set forth in the following lettered paragraphs... (f) In operating the said automobile in a zig-zagging and veering manner". While there are errors in the complaint as to street names and directions, this is not the basis of appellant's contention, nor could it well be since his counterclaim contains similar errors. The pleadings (which also include a reply) fully disclose that appellant was proceeding on a through highway and the wife-appellee was approaching from appellant's right at an intersection controlled by a stop sign.

At the trial Mrs. Stewart testified that, as she approached the intersection, she brought her car to a complete stop at the stop sign. Since the view to her left was obstructed, she proceeded forward approximately 30 feet and stopped again with her car "part way" on a trolley track, which ran along the side of the through highway. She waited there for appellant to pass, but "when he got to the intersection instead of going straight he turned his car real quick and crashed into me". Mrs. Anna C. Cyphers testified that the Stewart car "moved up and stopped on the car track", and that the collision occurred "right on the car track". Miss Patricia Gilmore testified to the same effect. There was no objection to any of this testimony and no plea of surprise. However, appellant's counsel eventually made a motion for a compulsory non-suit, and also presented a point for binding instructions. While these are proper methods to raise the question of variance, see Malone v. Melnick, 378 Pa. 483, 106 A.2d 806, we agree with Judge WEISS of the Court below that the variance, if any, in the case at bar "was not of such magnitude as to have misled the defendant in the preparation or presentation of his case".

Appellant interprets the testimony to establish that Mrs. Stewart had not as yet ...


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