Appeal, No. 90, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 695, in case of Robert Keener v. George Hupert. Judgment affirmed. Trespass for personal injuries and property damage. Before NIXON, J. Verdict for defendant; plaintiff's motion for new trial refused and judgment entered on the verdict. Plaintiff appealed.
Louis D. Cooper, with him Cooper, Hunter & Lewis, for appellant.
Kim Darragh, with him George Y. Meyer, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a final judgment for the defendant following refusal of the court below, sitting en banc, to grant the plaintiff's motion for new trial in a trespass action which arose from a collision between an automobile driven by defendant and a motorcycle operated by plaintiff. The appellant contends that the court below charged the jury that unless they found the accident happened as described by the plaintiff, they should return a verdict for the defendant, and that such instruction was reversible error.
The accident occurred on the Boulevard of the Allies, a large six-lane highway running generally east and west, in the City of Pittsburgh, at or near its intersection with Halket Street. On the south side of this intersection is a large Isaly Dairy Company store and parking lot with three driveways into the lot, one directly at the intersection and the other two being east and west respectively of the intersection. The accident occurred between 5:30 and 6:00 P.M. at a time when the traffic on the boulevard was quite heavy. The only witnesses to the happening of the accident were the plaintiff and the defendant.
Plaintiff's version of the accident was that he was proceeding along the curb lane of the three eastbound
lanes on the boulevard and that when he came to the intersection of Halket Street, the traffic light was red for him, and he stopped. When the light turned green, plaintiff looked to the right and left and then proceeded into the intersection. He then suddenly noticed defendant's car coming out of Halket Street on his left at about 45 miles an hour against the red light. Plaintiff testified that he was unable to avoid the defendant's automobile which struck him at the intersection and drove him twenty feet up into the center driveway of the Isaly store.
On the other hand the defendant's story was that he was travelling west on the boulevard, not on Halket Street, in the extreme left-hand lane. Defendant testified that he stopped to make a left turn into Isaly's east driveway which is 75 feet or more east of the intersection at Halket Street. As he was stopped there waiting for an opportunity to enter the parking lot, drivers in the two outermost eastbound lanes stopped and beckoned him to make his turn ahead of them. Defendant turned left past the front of the two waiting cars and proceeded very slowly into the curb lane. When he was about a foot into this lane, plaintiff's motorcycle glanced off the front of defendant's car and was deflected into the east driveway of the Isaly store.
At the conclusion of the court's charge, the trial judge asked counsel if they had any additions or suggestions. Defense counsel requested additional instructions on burden of proof and the following occurred: "The Court (to the jury): So there is no doubt about that, the burden of proof is the necessity or duty of affirmatively proving a fact or facts in dispute between the parties. The plaintiff here has the burden of proving ...