The opinion of the court was delivered by: GOURLEY
This is an action under the Federal Tort Claims Act for damages alleged to have been sustained in an automobile accident. 28 U.S.C.A. § 2671 et seq.
The substantive rights of the parties are governed by the law of Pennsylvania.
The plaintiff was driving his vehicle on a through highway which intersected with a secondary road at a T intersection. The intersection was hazardous and the view of approaching traffic on each of the highways was obstructed so that operators of vehicles on both highways could not see approaching traffic until in very close proximity to the intersecting highways. The accident occurred at a point 10 to 25 feet from the intersection on the through highway when the vehicle of the government drove from the secondary road on to the through highway, and struck the vehicle of the plaintiff.
The Pennsylvania Motor Vehicle Code provides, inter alia, that the driver of a vehicle entering a through highway shall yield the right of way to vehicles approaching the intersection on the main or through highway from either direction. Act of May 1, 1929, P.L. 905, 75 P.S.Pa. § 573(c).
Under said provisions of law it it is the duty of a motor vehicle driver who approaches an intersection of a main highway to stop and to yield the right of way to vehicles approaching the intersection on the main highway from either direction unless he is so far in advance that, in the exercise of reasonable care and prudence, he is justified in believing that he can cross the intersection ahead of the approaching vehicles without danger of a collision. Dougherty v. Merchants' Baking Co., 313 Pa. 557, 169 A. 753.
The Motor Vehicle Code in Pennsylvania further provides that although the driver of a vehicle entering a through highway has the duty to yield the right of way to all vehicles approaching in either direction on such through highway, a duty exists on the part of the operator of a vehicle on a through highway to drive with due regard for the safety of vehicles entering such through highway, nor shall said provision of law protect the driver of any vehicle on a through highway from the consequences of an arbitrary exercise of such right of way. Act of May 1, 1929, P.L. 905, art. X, Section 1014 and Amendments, 75 P.S.Pa. § 573.
Upon an evaluation of the evidence, I must conclude that the Army vehicle was operated in a negligent manner, and as a result thereof the plaintiff was placed in a sudden emergency which was not one of his own creation, which placed the plaintiff in a position of danger. Since the sudden emergency was not created through any act of omission or commission on the part of the plaintiff, and he used the best judgment possible under the circumstances, I must further conclude that no contributory negligence existed on the part of plaintiff. Silfies v. American Stores Co., 357 Pa. 176, 53 A.2d 610; Polonofsky v. Dobrosky, 313 Pa. 73, 169 A. 93.
The plaintiff is, therefore, entitled to recover four separate and distinct items of damages:
A. Medical Expenses, Hospitalization and Out of Pocket
St. Clair Memorial Hospital
(from 7/10/56 to 7/28/56) $ 489.55
St. Clair Memorial Hospital
(from 8/20/56 to 8/23/56) 103.25
St. Clair Memorial Hospital (x-ray) 15.00
Drs. H. G. Bregenser and Karl E. Blake 365.00
Dr. W. W. Ruehl 300.00
Dr. Robert Love Baker 25.00
Dr. J. Murl Johnston 40.00
Dr. Murray B. Ferderber 50.00
Dr. Floyd H. Bragdon 15.00
Drug Bills 6.35
Damage to or loss of personal property
(excluding automobile) 110.00
Damage to automobile 1,145.00
Towing and storing charges 35.00
B. Loss of Wages:
From July 10, 1956, to Sept. 24, 1956 650.00
C. Impairment of Earning Power:
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