Appeal, No. 105, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, July T., 1953, No. 2483, in case of Samuel Roberts v. Pittsburgh Railways Company. Judgment affirmed.
Regis C. Nairn, with him James P. McArdle, for appellant.
Con F. McGregor, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
Judgment is affirmed on the opinion of Judge DUFF, which is reported in 8 D. & C. 2d 237.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
This Court has affirmed the judgment of the lower Court on the Opinion of the Trial Judge. When this is done, the Majority approving the affirmance accepts, of course, the Opinion of the lower Court as its own. The Majority, therefore, says in this case: "In considering the motion for judgment n.o.v., we follow the long established rule that the testimony must be regarded in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference of fact which may be deduced therefrom." Although the Majority says that it follows the announced rule of reading the testimony favorably to the plaintiff, it would appear to me that it follows the rule at such a distance that from time to time it completely loses sight of it. On what basis, otherwise, could it arrive at the conclusion that the plaintiff has failed to make out a case of negligence against the defendant railway company, or that he is guilty of contributory negligence?
The facts are simply these. In the early morning of November 6, 1951, the plaintiff was driving his car on Center Avenue, Pittsburgh, toward the T intersection formed by Fullerton Street which intersects Center Avenue. It was the plaintiff's intention, upon arriving at Fullerton Street, to turn to the left on Fullerton and he physically indicated that intention. As he approached Fullerton Street, he was confronted with a street car stopped at Fullerton. Assuming that the car would remain stationary until he turned in front of it down Fullerton Street, he continued moving forward at a speed of 10 to 15 miles per hour. However, just as he was about to execute the indicated turn, the street car "shot out" so as to cut off his progress, and he had to decide whether to increase his speed and dart ahead of the car to avert the looming collision, or to swerve sharply to the right and miss the car completely. He
chose the latter course, but the time element was too short and, as a consequence, the left side of his automobile came into contact with the left side of the street car and an impact followed, which caused him serious injuries, for which the jury awarded him $10,000.
If the accident happened in the manner just related, no Court would be justified in entering a non-suit against the plaintiff because it could not be said that there could not be found two reasonable persons who would honestly disagree as to whether the plaintiff did not commit an act of contributory negligence in doing what he did. If a non-suit would not be proper in such a fact situation, a fortiori, judgment ...