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MARANCA v. PHILADELPHIA (ET AL. (01/12/59)

January 12, 1959

MARANCA
v.
PHILADELPHIA (ET AL., APPELLANT).



Appeal, No. 357, Jan. T., 1958, from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1956, No. 6194, in case of Ralph Maranca v. City of Philadelphia et al. Judgment affirmed.

COUNSEL

Thomas Raeburn White, Jr., with him White, Williams & Scott, for appellant.

Max Meshon, with him Herbert Brener, and Eilberg, Meshon & Brener, for appellee.

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

Author: Jones

[ 394 Pa. Page 532]

OPINION BY MR. CHIEF JUSTICE JONES.

This appeal is from a judgment for the plaintiff against the Reading Company for personal injuries and damage to his automobile which the plaintiff suffered as the result of an accident on Delaware Avenue, Philadelphia. Originally the plaintiff had also sued

[ 394 Pa. Page 533]

    the City of Philadelphia jointly and, later, the Union Paving Company had been brought on the record as an additional defendant. At trial, the plaintiff suffered a voluntary non-suit as to both the City of Philadelphia and the Union Paving Company and proceeded against the Reading Company alone. The jury returned a verdict for the plaintiff. The defendant moved for judgment in its favor, notwithstanding the verdict, on the ground that the plaintiff was guilty of contributory negligence as a matter of law. The court en banc overruled the motion and entered judgment on the verdict for the plaintiff which the Reading Company has appealed. The appellant's sole assignment is alleged error in the lower court's refusal of the motion for judgment n.o.v. The appellant concedes that the question of its own negligence, as the proximate cause of the accident, was a question for the jury under all the evidence in the case.

The oft-repeated rule requires that, in considering a motion for judgment n.o.v., the evidence is to be viewed in the light most favorable to the verdict; all conflicts in the testimony are to be resolved in favor of the verdict winner who is also entitled to all favorable inferences of fact reasonably deducible from the evidence: Pro v. Pennsylvania Railroad Company, 390 Pa. 437, 441-442, 135 A.2d 920; Bartleson v. Glen Alden Coal Company, 361 Pa. 519, 521, 64 A.2d 846.

The accident in suit occurred when the plaintiff, while traveling north on Delaware Avenue around 9 P.M. on the night of October 22, 1955, drove into an unlighted obstruction athwart the highway in the form of a ridge of earth and cobblestones, approximately three feet in height and actually extending 51 feet into Delaware Avenue from the east side of the street. The obstructing ridge had been thrown up by the Reading Company in its excavation of a trench or ditch along

[ 394 Pa. Page 534]

    a siding track which traversed Delaware Avenue at right angles in an east-west direction, the company having piled the excavated paving stones and earth on the street along the south edge of the open trench. Shortly before the happening of the accident, as the plaintiff was driving north on Delaware Avenue, he passed a well lighted excavation to his left on the west side of the roadway. This excavation, which was 100 to 150 feet south of the unlighted obstruction on the east or northbound side of the street, caused southbound traffic to veer into the northbound portion of the Avenue. The plaintiff, traveling at a rate of speed of 20 to 25 miles per hour, was confronted with just such a vehicle which came over into plaintiff's northbound lane of traffic approximately 50 to 100 feet south of the unlighted ridge of dirt and paving stones. Seeing nothing in front of him but the lights of the oncoming vehicle, the plaintiff, in order to pass it with safety, veered to his right and immediately smashed into the unlighted obstruction at a point approximately three feet from its west or outer end ...


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