Appeal, No. 54, Jan. T., 1955, from judgment of Court of Common Pleas of Bucks County, Oct. T., 1949, No. 44, in case of Grover C. Martin v. Samuel Meil. Judgment reversed.
Emanuel H. Klein, for appellant.
Ward Clark, with him William M. Power, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
Two miles south of Quakertown in Bucks County the Lower Trumbauersville Road (an 18 feet wide Road running east and west), intersects Route 309 (a 30 feet wide three-lane Highway running north and south). On a clear evening in October 1947, shortly after 7 o'clock, the plaintiff, Martin, was driving his automobile in an eastwardly direction along the Road. When he arrived at the intersection he looked to his right and to his left. On his right, having clear vision for at least half a mile, he noted only one automobile, the defendant's, traveling northward on the Highway about 700 feet sought of the intersection. Martin then entered upon the intersection and, proceeding at five miles an hour, drove 18 to 20 feet across the Highway. While in the middle lane Martin looked again to his right and saw the defendant's automobile some 100 feet away in the northbound lane. The plaintiff thereupon
accelerated his car and continued across. A collision between the vehicles occurred on the Road just east of the intersection.
Plaintiff Martin instituted suit for personal injuries. Meil cross-filed, and the actions were consolidated for trial. The jury found for the plaintiff and against the defendant in his cross-action. A judgment n.o.v. was granted for the defendant in the plaintiff's suit and this appeal followed.
Judgment n.o.v. was entered because the court thought plaintiff was contributorily negligent as a matter of law in proceeding across the intersection in the face of the defendant's oncoming machine. The court said in its opinion: "The plaintiff saw defendant's car only one hundred feet away, moving, according to his volunteered estimate, at seventy miles per hour. Notwithstanding that he said he was travelling only about five miles per hour and could have stopped within eighteen inches, plaintiff accelerated and continued across in the face of this danger without looking again and the collision resulted. ..."
The only question before us is whether the court below was correct in concluding that the plaintiff was contributorily negligent as a matter of law.
Certainly the rate of speed at which the defendant was moving is material to the issue of plaintiff's negligence in continuing to cross the Highway. However, the lower court at trial had refused to admit plaintiff's testimony that the defendant was driving at 70 miles an hour. The only evidence in the record, therefore, of the speed of the defendant as he approached the intersection was the ...