The opinion of the court was delivered by: DUSEN
The jury was unable to agree on a verdict at the trial of this case and defendant has filed a motion for entry of judgment in his favor under Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C., on the ground that plaintiff was guilty of contributory negligence as a matter of law.
Whether the plaintiff was, or was not, contributorily negligent as a matter of law under the Pennsylvania decisions is a very close question on the facts of this case. The trial judge pointed out the apparent difficulty of plaintiff's position at the conclusion of plaintiff's case when defendant's motion to dismiss the action under Rule 41 was denied.
As a result of argument on defendant's motion for judgment under Rule 50(b) and the authorities submitted to the trial judge, the record has been reviewed in an effort to determine all the evidence which can possibly support the plaintiff's contentions. This evidence may be summarized as follows:
1. The accident in question occurred between 6:00 and 6:30 P.M. on June 9, 1953, at the intersection of 17th Street and the Benjamin Franklin Parkway in the City of Philadelphia (N.T. 8). It was daylight and there was a sun shower at the time (N.T. 8).
2. Plaintiff was driving his 1951 DeSoto Sedan in a westerly direction in the second lane from the north curb of the Parkway. There was no traffic either ahead of or abreast of the plaintiff (N.T. 8-9).
3. When plaintiff passed 16th Street, he looked ahead toward 17th Street and saw that the traffic light was red for Parkway traffic, whereupon plaintiff allowed his car to decelerate (N.T. 9).
4. When plaintiff was about 300 feet from the 17th Street intersection, the light turned to green and he started to accelerate his car (N.T. 10).
5. As plaintiff approached 17th Street, he allowed his car to decelerate. Plaintiff had his foot on the brake pedal, but did not depress the pedal (N.T. 32). He looked up Cherry Street and 17th Street. Plaintiff's vision up 17th Street was obscured by a wall on the northeast corner of the intersection surrounding the Friends Select School (N.T. 11).
6. When plaintiff, traveling at a speed of less than 13 miles per hour (N.T. 31), reached a point 10 feet east of the east curb line of 17th Street, he first saw defendant's tractor-trailer, which was traveling south on 17th Street in the east lane with one wheel in the middle of the car tracks and one wheel toward the east curb of 17th Street. The tractor-trailer was about 8 feet north of the north curb line of the Parkway (N.T. 12) and was moving at a speed of about 30 miles per hour (N.T. 14).
7. Plaintiff applied his brakes in an effort to stop, though he was not sure as to the exact point at which he depressed them (N.T. 34). Plaintiff succeeded in stopping his car at a point 5 feet east of the 17th Street car tracks (N.T. 34).
8. After he had stopped, plaintiff's vehicle was struck by the trailer part of the tractor-trailer at a point just behind the cab of the tractor-trailer (N.T. 12, D-2). Plaintiff was thereupon rendered unconscious (N.T. 13).
9. As plaintiff approached the intersection and at the time of the collision, the light was green for Parkway traffic and red for 17th Street (N.T. 14, 59).
After considering this evidence, the trial judge believes that defendant's motion for a judgment in its favor must be denied, even though the diagram offered in evidence by plaintiff (Exhibit P-1A) shows that plaintiff could have looked north on 17th Street with an unobstructed view prior to the time he reached a point 10 feet east of the east ...