Appeal, No. 22, Feb. T., 1958, from order of Court of Common Pleas of Columbia County, Oct. T., 1956, No. 49, in case of Russell C. Lutz et ux. v. Harry Force. Order, as modified, affirmed.
Thomas J. Evans, for appellant.
Nickolas B. Piazza, for appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).
[ 185 Pa. Super. Page 611]
Russell Lutz and his wife, Charlotte, instituted an action in trespass to recover damages resulting from an intersection collision between a Pontiac automobile,
[ 185 Pa. Super. Page 612]
owned by Russell and operated by Charlotte, and a Dodge automobile owned and operated by Harry Force. Harry filed a counterclaim against Charlotte. Russell's claim was for damage to his car and loss of use thereof, and for his wife's medical expenses and loss of her society. Charlotte's claim was for pain and suffering, loss of wages, and permanent injury. Harry's counterclaim was for car damage, pain and suffering, and medical expense for himself and his wife, a guest passenger in the Dodge. The trial judge directed the jury to return three verdicts. As to the claims of Russell and Charlotte, the jury returned verdicts in favor of Harry. As to Harry's counterclaim, the jury returned "a verdict in favor of Harry Force, no amount". The court below granted Russell's motion for a new trial "with the right of the said Harry Force, defendant, to assert his counterclaim against Charlotte Lutz at the same trial". Harry has appealed.
The collision occurred on March 15, 1956, in the Borough of Berwick. Charlotte Lutz, sole occupant of the Pontiac, was driving north on Chestnut Street. Harry Force was driving west on Martz Street, traffic on which was controlled by a stop sign at the intersection in question. The Lutz theory was that Charlotte was free from negligence, and that Harry was negligent in not stopping at the sign. The theory of Harry Force was that he had stopped at the sign, and that the collision was solely due to Charlotte's negligence. The only witnesses supporting the Force theory were Harry and his wife. In addition to Charlotte, three disinterested witnesses supported the Lutz theory. Mrs. Lorraine McAfee, who saw the collision, testified that Harry came "right on through" the stop sign. J. L. Adams, who arrived at the scene immediately after the collision, testified that Harry said: "I didn't see her coming". Nathaniel Sitler, who also arrived
[ 185 Pa. Super. Page 613]
at the scene immediately after the collision, testified that he said to Harry: "Didn't you see that stop sign there", and that Harry answered: "I didn't see it".
The jury was properly instructed that any negligence on Charlotte's part was not imputable to Russell. See Toenges v. Schleihauf, 368 Pa. 247, 82 A.2d 15. It is clear from the opinion of the lower court that the order was based on the ground that, while the evidence justified a finding that Charlotte was negligent, a finding that Harry was not negligent was contrary to the evidence and entirely unjustified. Judge KREISHER took the position that the jurors "concluded the defendant [Harry Force] was driving in a negligent manner since they ...