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SMITH v. FLANNERY. (01/04/56)

January 4, 1956

SMITH, APPELLANT,
v.
FLANNERY.



Appeals, Nos. 260 to 265, inclusive, Jan. T., 1955, from orders of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1953, No. 762, in case of Robert Kenneth Smith et al. v. Michael Flannery and Robert Kenneth Smith, additional defendant. Orders reversed.

COUNSEL

John V. Lovitt, with him Charles L. Ford and Beechwood & Lovitt, for appellants.

Michael A. Foley, with him Morris Passon, for appellee.

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

Author: Stern

[ 383 Pa. Page 527]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

In this case of a right angle collision between two automobiles the question as to who was responsible for the happening of the accident was solely for the jury, and the court should have left it, in whole and not merely in part, to that tribunal for determination.

The accident occurred in the early afternoon of September 2, 1953, at the intersection of 61st Street and Cobbs Creek Parkway in Philadelphia. The intersection is controlled by traffic lights which were in operation at the time of the collision. It was a dry clear day. As is not unusual in such cases the drivers gave diametrically opposite versions as to how the accident happened. According to plaintiff Smith, he was

[ 383 Pa. Page 528]

    driving north on 61st Street. Helen Ranson, the owner of the car, sat next to him and on the rear seat was her mother, Helen Russell. Smith testified that he was proceeding on the right-hand side of the street about 8 feet out from the east curb. When he came to within about 30 or 40 feet from the intersection he looked to his right for approaching traffic, but not being able at that point to see all the way down the Parkway because of cars parked along the curb he looked again at 20 feet below the intersection first to his left and then to his right; in the latter direction he said he could see for a distance of 40 yards but saw nothing approaching. The light was then green in his favor and remained so as he entered the intersection. He was more than halfway across when the car driven by defendant Flannery, which came from his right and which he did not see until it was 20 feet away, struck the rear right side of his car, with the result that both vehicles landed on the northwest corner of the intersection. Smith testified that he was crossing at the rate of 23 miles an hour but increased his speed at the last moment in a vain attempt to avoid the impending collision.

Flannery was alone in his car. His story of the accident was that he was driving westwardly on the north side of Cobbs Creek Parkway at a distance of approximately 3 or 4 feet from cars parked along the curb. Approaching the intersection at about 30 miles an hour, when he was some 3 car lengths away from 61st Street the light was green in his favor and he then "coasted" into the intersection. He testified that when he came to the curb line he looked to his left and saw that the street was clear for a distance of at least 3 car lengths below the south curb of the Parkway. The light being still green for him he continued on at a speed of 26 or 27 miles an hour. After he had

[ 383 Pa. Page 529]

    proceeded about a car length into the intersection he saw the Smith car which was then halfway across the Parkway coming on an angle in front of him. He applied his brakes and swerved to the right but could not ...


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