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TAYLOR v. MOUNTZ. (12/29/56)

December 29, 1956

TAYLOR, APPELLANT
v.
MOUNTZ.



Appeal, No. 262, Jan. T., 1956, from judgment of Court of Common Pleas No. 7 of Philadelphia County, June T., 1953, No. 1972, in case of Henry Taylor v. Charles M. Mountz. Judgment reversed. Trespass for personal injuries and property damage. Before REIMEL, J. Upon disagreement of jury, defendant's motion for judgment on the whole record granted, opinion by ALESSANDRONI, P.J. Plaintiff appealed.

COUNSEL

A. Samuel Buchman, for appellant.

Norman R. Bradley, with him Ralph S. Croskey, and Croskey & Edwards, for appellee.

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

Author: Musmanno

[ 387 Pa. Page 323]

OPINION BY MR. JUSTICE MUSMANNO

On January 17, 1953, in the City of Philadelphia, a car operated by the plaintiff Henry Taylor southwardly on 15th Street, and one operated by the defendant Charles W. Mountz eastwardly on Berks Street, collided at the point where these two streets intersect, and as a result Taylor sustained serious damages, to recover which he brought suit against Mountz. At the ensuing trial the jury disagreed, and the defendant, under the Act of 1911, P.L. 70, 12 P.S. 684, moved for judgment of the whole record. The motion was granted by the lower Court, and this appeal followed.

Fifteenth Street, which is a through thoroughfare, is protected against traffic coming out of Berks Street by a Stop sign erected on the latter street. On the day of the accident, which is the subject of this lawsuit, the defendant drove by the Stop sign and it is practically unquestioned that this defection on his part became the proximate cause of the mishap which followed. It is the contention of the defendant, however, that regardless of his negligence the plaintiff is barred from a recovery because of contributory negligence. He argues that the plaintiff should have known that he would ignore the Stop sign and that, therefore, his (the plaintiff's) injuries are the result of his own heed-lessness.

The plaintiff testified that as he approached Berks Street, travelling at 25 miles per hour, he saw Mountz's car some 150 to 200 feet away, that he (the plaintiff) then slackened his speed and when he reached a point 50 feet from the intersection he was moving at 15 miles per hour. He related that when he first caught sight of the Mountz car it was moving at 20-25 miles per hour, but that when it arrived at a point 20-25 feet from the intersection it slowed down to such an extent that the the plaintiff it "seemed like he (Mountz) was about to come to a stop."

[ 387 Pa. Page 324]

During one phase of his testimony the plaintiff said: "Q. How fast was the defendant's car going? A. It seemed to me he had broken his speed. Q. Did you estimate whether or not he was going 10 miles an hour? A. Probably 20 to 25 miles an hour."

Standing on the platform of this last answer the defendant contends, and the lower Court has agreed with him, that if he (the defendant) approached the intersection at 20-25 miles per hour, it must have been quite apparent to the plaintiff that the defendant did not intend to respect the Stop sign and it was accordingly the plaintiff's duty, under the circumstances, to come to a stop himself and thus avoid a collision. But this argument seeks to impale the plaintiff on one answer alone. But the plaintiff made many answers and we must consider them all. In a review of this kind, the record is to be read in the light most advantageous to the plaintiff. That light should illuminate the favorable inferences while shadows fall on the unfavorable inferences. If the general highway of the evidence leads to the conclusion that the plaintiff was justified in doing what he did, he may not be denied a jury trial because one contrary fact-pebble disputes that conclusion.

In addition to what has already been quoted, the plaintiff testified: "Q. About how far back from 15th Street, from the west curb, was Mr. Mountz' car when you say it started to break down its speed? A. 20 to 25 feet back. Q. Up until that point would you say he continued at the same speed? A. As I approached, it seems as though he slowed down. Q. Before he seemed to slow down, did he maintain the same rate of speed? A. No, sir. Q. Can you give us an ...


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