Appeal, No. 116, Jan. T., 1956, from judgment of Court of Common Pleas of Delaware County, March T., 1955, No. 19, in case of Eli Mathews et ux. v. Frank P. Patton and James Robert Rubino. Judgment affirmed.
Edward H. P. Fronefield, with him Edward H. Bryant, Jr., and Lutz, Fronefield, Warner & Bryant, for appellant.
Howard Richard, with him Berman & Richard, for appellees.
Before Stern, C.j., Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
A big oak tree, with a trunk diameter of four feet, rears its circumferential luxuriant head and shoulders at the northwest corner of Huey and Brookfield Avenues in Philadelphia. In the month of August its foliage reaches such richness of expansion that it curtains the approach to either street for persons advancing on the intersecting thoroughfare. Surrounding shrubbery some six or seven feet high and in the full leaf of its summer vesture helps the tree in producing here what is known as a "blind corner." Elementary prudence dictates to motorists arriving at this point from either street to more with the utmost caution and at the slowest possible speed. The Vehicle Code with commendatory prescience anticipates the perils attendant upon such obscured street approaches and accordingly restricts motorists in such a locality to a maximum speed of 20 miles per hour.
On August 18, 1953, the defendant in this case, James Robert Rubino, drove his car at the rate of 30 to 35 miles per hour southwardly on Brookfield Avenue and collided with a taxicab being driven by the plaintiff Eli Mathews as it emerged from Huey Avenue into Brookfield, travelling in an eastwardly direction. The taxicab, moving in from the defendant's right, had the right of way.
In the ensuing lawsuit the plaintiff recovered a verdict of $12,000 because of injuries resulting from the collision. The defendant now seeks judgment n.o.v., contending that the plaintiff was guilty of contributory negligence in that he did not exercise the care required at a traffic point of the character described. The record does not reveal the exact speed at which
the plaintiff entered the obscured intersection. However, he did testify that before he got to Brookfield he was "doing approximately 20, 25 miles per hour." And then, as he actually approached Brookfield he "slowed a bit." It is reasonable to assume from this testimony that he was not exceeding 20 miles per hour as he entered the crucial area. At any rate it was for the jury to decide, under appropriate instructions from the Court, whether at the moment he penetrated Brookfield Avenue he was violating The Vehicle Code. We are satisfied from a reading of the record that the jury was justified in exculpating the plaintiff from the charge of contributory negligence on the basis of speed.
As the plaintiff entered upon Brookfield Avenue he saw the defendant's car about two or three car lengths away, travelling toward him with such velocity that a sudden stoppage on his part would invite inevitable collision. He accordingly swerved to the right and accelerated his speed, hoping that by this maneuver he could avoid the defendant who, however, continued to advance with undiminished movement, striking the plaintiff's cab at the rear left door, hurling the plaintiff into the street where he was run over by either his own or the defendant's vehicle.
Whether the plaintiff under the circumstances which confronted him, without fault on his part, exercised the reasonable care required by the law of the highway was also a question of fact for the jury, and we are again ...