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FURIA v. PERRI (09/11/58)

September 11, 1958

FURIA
v.
PERRI, APPELLANT.



Appeals, Nos. 195 and 196, Oct. T., 1958, from judgments of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1955, No. 9999, in cases of Edward W. Furia v. Joseph Perri, and Mollie S. Furia v. Joseph Perri and Edward W. Furia, additional defendant. Judgments reversed.

COUNSEL

Albert L. Bricklin, for appellant.

Romolo J. DiCintio, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 187 Pa. Super. Page 532]

OPINION BY ERVIN, J.

This is an action in trespass arising from a right angle collision between two automobiles. It was tried

[ 187 Pa. Super. Page 533]

    by a judge without a jury. The court below entered judgment for the plaintiff, Edward W. Furia, in the sum of $5,000.00, and for the plaintiff, Mollie S. Furia, his wife, in the sum of $388.34. The defendant appealed from both judgments.

The action was originally commenced by Edward W. Furia and Mollie S. Furia, his wife, against Joseph Perri. The claims of the plaintiffs were severed and Edward W. Furia was made an additional defendant with Joseph Perri in the claim of Mollie S. Furia. The court below found that Edward W. Furia was free from negligence and that the accident was caused by the sole negligence of Joseph Perri. We are of the opinion that Edward W. Furia, the husband-plaintiff, was negligent as a matter of law.

The accident occurred at the intersection of Ninth and Fitzwater Streets in the City of Philadelphia on August 2, 1955 at approximately 6:00 p.m. The plaintiff, Edward W. Furia, was driving his wife's automobile, solely on his own business, in an eastwardly direction on Fitzwater Street toward its intersection with Ninth Street. The defendant, Joseph Perri, was driving his automobile in a northwardly direction on Ninth Street toward its intersection with Fitzwater Street. Ninth Street is 26 feet wide and is a one-way street for northbound traffic. There is a single trolley track in the center of Ninth Street. It is a through highway. Fitzwater Street is a two-way street, 26 feet wide, controlled by a stop sign. There is no conflict in the evidence about the parked cars. They were solid on both sides of both streets and at the southwest corner there were two trucks, one on Ninth Street and the other on Fitzwater Street, and they extended so near to the curb of each street that they almost touched. Another large truck was parked at the southeast corner on Ninth Street opposite the one on the southwest corner. This

[ 187 Pa. Super. Page 534]

    left a "tunnel" through which defendant's car, going north on Ninth Street, had to pass. The plaintiff knew there was a stop sign confronting him but he couldn't see it because of the parked trucks. The plaintiff did not stop at the edge of Ninth Street because he could not see south thereon because of the parked trucks. However, he did stop at the first position where he could look south on Ninth Street and see approaching traffic. At this point the front of his car was about at the west rail of the Ninth Street trolley tracks. Looking right, he saw defendant 100 feet away approaching north on Ninth Street. Plaintiff could not judge the speed at which defendant was approaching but thought that the rate of approach was slow enough for him to get through the intersection. In its finding of fact the court below states that defendant approached the intersection at 20 to 25 miles per hour. The basis of this finding came from defendant's own testimony. Plaintiff then went ahead and next saw defendant's car when it was 30 feet away. The front of the plaintiff's car was then over the east rail. Defendant was coming rapidly and plaintiff tried to accelerate but was hit when the front of his car was about even with the east curb of Ninth Street. The whole right side of his car was damaged but the point of impact was at the right rear door. The defendant was driving 20 to 25 miles an hour and then slowed to 15 to 20 miles per hour by taking his foot off the accelerator near the intersection. He testified that he ...


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