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MCCUNE v. ELLENBERGER. (12/28/56)

December 28, 1956

MCCUNE, APPELLANT,
v.
ELLENBERGER.



Appeal, No. 175, April T., 1956, from judgment of Court of Common Pleas of Allegheny County, July T., 1952, No. 1031, in case of Richard A. McCune v. Harry J. Ellenberger, Sr. Judgment reversed.

COUNSEL

Aaron Rosenzweig, with him Samuel M. Rosenzweig, for appellant.

Robert Palkovitz, for appellee.

Before Hirt, Gunther, Wright, Woodside, and Carr, JJ. (rhodes, P.j., and Ervin, J., absent).

Author: Wright

[ 182 Pa. Super. Page 443]

OPINION BY WRIGHT, J.

Plaintiff instituted an action in trespass to recover property damage resulting from an automobile collision which occurred on October 22, 1948, about 5:30 p.m., at the intersection of Coursin Street and Shaw Avenue in the City of McKeesport. Following a non-jury trial the hearing judge rendered a decision in favor of plaintiff. The court en banc entered judgment n.o.v. for the defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff has appealed.

A finding by a trial judge sitting without a jury has the force and effect of a jury's verdict: Bell Telephone Co. v. Cruice, 178 Pa. Superior Ct. 308, 116 A.2d 355. On appeal, therefore, the party favored by the finding is entitled to have the evidence viewed in the light most favorable to him, receiving the benefit of all favorable inferences and having all conflicts in testimony resolved in his favor: Merit Motors v. Bartholomew, 179 Pa. Superior Ct. 576, 118 A.2d 277. Contributory negligence will be declared as a matter of law only where it is so clear that there is no room for

[ 182 Pa. Super. Page 444]

    fair and reasonable disagreement as to its existence: Claypool v. Schrecengost, 181 Pa. Superior Ct. 1, 121 A.2d 603. And see Cooper v. Heintz Manufacturing Co., 385 Pa. 296, 122 A.2d 699.

Coursin Street at the site of the collision is a two-way through street running north and south. Shaw Avenue is a two-way street running east and west, traffic on which is controlled by stop signs where it crosses Coursin Street. The weather was clear, the roadway dry, and there was no other traffic. Appellant was proceeding north on Coursin Street. When he reached Shaw Avenue, he stopped a few feet south of the south curb line and looked first to the left and then to the right. He testified that he was thoroughly familiar with the intersection, and considered it a "blind intersection", which was his reason for coming to a full stop. His view to the left was obstructed by a building and by a utility pole, so that he could not see further than 50 feet into Shaw Avenue. Observing nothing within that distance, appellant proceeded to enter the intersection in low gear, continuing to look. When he was ten feet in the intersection he first saw appellee's car approaching from the west about 15 feet away. The impact occurred as appellant's car reached the center of the intersection. The right front fender of appellee's car struck the left front fender of appellant's car. A police officer testified that appellee admitted he had not stopped at the stop sign.

The court en banc does not refer to any authorities in support of its conclusion. Counsel for appellee cites three cases which are entirely inapposite. In Wolfe v. Pittsburgh, 373 Pa. 626, 96 A.2d 907, a patrol truck was driven through a red light in reckless disregard of transverse traffic. In ...


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