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BOVELL v. DUBRUSKY (03/17/58)

March 17, 1958

BOVELL
v.
DUBRUSKY, APPELLANT.



Appeal, No. 60, Jan. T., 1958, from judgment of Court of Common Pleas of Montgomery County, Feb. T., 1954, No. 377, in case of Herbert Bovell v. Frank J. Dubrusky. Judgment affirmed.

COUNSEL

Arthur Lefkoe, for appellant.

William W. Vogel, with him Cassin W. Craig and Wisler, Pearlstine & Talone, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Musmanno

[ 391 Pa. Page 659]

OPINION BY MR. JUSTICE MUSMANNO

On April 11, 1953, at about 10:15 p.m., Herbert Bovell, the plaintiff in this case, was crossing Hector Street in Whitemarsh Township near Conshohocken at a point where it intersects with End Street, when he was struck by an automobile owned and operated by the defendant, F. J. Dubrusky, thereby sustaining serious injuries. He brought an action in trespass and was awarded a verdict of $28,000. The defendant has appealed, seeking judgment n.o.v. or a new trial.

The defendant contends that the plaintiff failed to prove that he (the defendant) was negligent in any respect. The evidence produced in behalf of the plaintiff shows that at the time of the accident the defendant

[ 391 Pa. Page 660]

    was driving his car on its wrong side of the highway. And when, in a trial, testimony reveals that a motorist was driving eastwardly on a westbound street at the time he struck a pedestrian, the motorist takes on the burden of explaining to the jury's satisfaction that his appearance on the contrary side of the highway was without fault on his part. The defendant accepted that burden. He explained that a bus was parked on the right side of the street and that he thought some passengers might walk out into the street ahead of his car. Thus, to avoid the possibility of hitting these nonexistent people he "pulled a little toward the center of the street but still on the right side." The jury did not believe the story.

The jury believed the plaintiff who said that before committing himself to the crossing of Hector Street he looked to the right and to the left and saw no traffic approaching from either direction. He repeated this wariness as he moved forward with caution and when he was "possibly a couple feet" from the center of the highway a "flash of light" appeared before him. The head lamps of an automobile bearing down on him from his right announced imminent peril to life and limb. In a split-second deliberation he decided that safety lay closer in the direction from which he had come than on the south side of Hector Street toward which he had been heading. He pivoted on his heel and scurried back toward the north side of the street. But by now the car had overtaken him and hit him head-on.

Bovell's journey terminated 45 feet from the center of the intersection where, he testified, the automobile had hit him. A police officer who appeared on the scene shortly after the collision testified that he saw fresh skid marks 42 feet in length beginning at the center of the ...


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