Appeal, No. 295, Jan. T., 1955, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March T., 1954, No. 3758, in case of John S. Connelly v. Thomas Smith. Judgment affirmed.
J. Webster Jones, for appellant.
Benjamin Bernstein, with him Bernstein & Berstein, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass involving a right angle collision of automobiles at the intersection of Wallace and 44th Streets in the city of Philadelphia, the defendant appeals from the refusal of his motion for judgment notwithstanding the jury's verdict. His sole contention is that plaintiff was guilty of contributory negligence as a matter of law.
Wallace Street, 26 feet wide between curbs, with 12 foot sidewalks, is a two-way street running east and west; and 44the Street, 34 feet wide between curbs, with 13 foot sidewalks, is a two-way street running north
and south. The two streets intersect at right angles, and neither of them has traffic signs or signals.
On March 7, 1954, a clear, dry day, plaintiff was operating his automobile southerly on 44th Street; and defendant was driving his automobile westerly on Wallace Street. Plaintiff had been travelling at approximately 25 miles per hour, but as he approached Wallace Street he decreased his speed to 8 to 10 miles per hour. When the front of his automobile reached a point 10 feet from the nearest, or north, curb line of Wallace Street, he looked to the left, or east, and saw defendant some 100 feet away, approaching on the right side of Wallace Street at a speed of approximately 25 miles per hour. He continued across Wallace Street on his right side, and as he did so he looked to his right, or west, to observe traffic coming from that direction. He was then at the middle of Wallace Street, and again looked to his left, and saw defendant entering the intersection on the left side of Wallace Street at an increased speed of 40 miles per hour. Although he tried to avoid collision, his automobile was struck by defendant when plaintiff's car had reached a point some threefourths of the distance across Wallace Street. These facts, in one particular or another, are substantiated not only by plaintiff's testimony but also that of his passenger, as well as by two policemen who had been driving behind him.
Finding the facts and inferences therefrom in an aspect most favorable to the verdict, as we must, we cannot but hold that the question of plaintiff's contributory negligence was solely for the jury, and he could not be declared guilty thereof as a matter of law.
By taking apparently conflicting portions of plaintiff's testimony, and by making some mathematical calculations not borne ...