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SULLIVAN v. CARMANY. (03/15/56)

March 15, 1956

SULLIVAN, APPELLANT,
v.
CARMANY.



Appeals, Nos. 56 and 57, Jan. T., 1956, from judgment of Court of Common Pleas of Lebanon County, Sept. T., 1954, No. 402, in case of Adeline M. Sullivan et vir v. David Carmany. Judgment affirmed.

COUNSEL

H. Rank Bickel, Jr., with him Bickel, Davis & Katz, for appellants.

L. E. Meyer, with him Meyer, Brubake & Whitman, for appellee.

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

Author: Arnold

[ 384 Pa. Page 487]

OPINION BY MR. JUSTICE ARNOLD

Plaintiffs appeal from the refusal of their motion for new trial in this action of trespass for personal injuries to plaintiff-wife, arising out of an automobile collision. The case was tried before a jury and resulted in a verdict for defendant.

The sole basis for new trial urged on this appeal is that the court below erred in its affirmance of defendant's seventh point for charge, which read: "Mrs. Sullivan, in making a turn into a private driveway from a through highway where the speed limit was 50 miles per hour, is to be held strictly accountable for the manner in which she drove." Prior to so charging, the court had fully and properly charged the jury on negligence and contributory negligence in all respects.

On the day in question, plaintiff-wife was driving westerly, and defendant was operating his automobile in an easterly direction, on route 322 in the village of Fontana. The highway is 22 feet in width and has a black top surface. As plaintiff reached a point opposite a private driveway to her left, she stopped on the berm on her right side to permit a truck, travelling in the same direction, to pass her. She then looked to the west and, observing no approaching traffic, turned left to proceed towards the private driveway. When she was approximately one-half of the distance across the highway she saw defendant approaching from the west at a fast rate of speed, and at a distance of about 400 feet. From the point of impact there is a clear view to the west for as much as 662 feet. Plaintiff estimated defendant's speed at 50 to 70 miles per hour. The evidence also established that there were "two unbroken parallel skid marks 60 feet long on the eastbound lane

[ 384 Pa. Page 488]

    from the debris west." Defendant and his witness testified to a speed of approximately 40 miles per hour; that plaintiff "darted across the street"; and that he could not avoid striking her. The speed limit was 50 miles per hour.

A careful examination of the charge is convincing that the jury was fully informed and could have been under no misapprehension as to the law or the facts. As the court below well said:

"Under these circumstances, we are of the opinion that the plaintiff-operator was under the same duty of care as if she ...


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