Appeal, No. 243, April T., 1958, from judgment of Court of Common Pleas of Beaver County, June T., 1957, No. 165, in case of Wilbert F. Bell v. John Dugan, Jr. Judgment affirmed.
Edwin M. Wallover, with him Wallover & Barrickman, for appellant.
J. Frank Kelker, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).
[ 189 Pa. Super. Page 323]
This appeal is from the refusal of the court below to grant a motion for judgment n.o.v. filed by defendant, John Dugan, Jr., who was involved in an accident at an intersection. The sole question is whether the plaintiff, Wilbert F. Bell, was guilty of contributory negligence as a matter of law.
On December 8, 1956, at about 9:40 p.m., plaintiff was driving a Chevrolet pick-up truck in a northerly direction on State Highway Route 51, also known as Brodhead Road, in the Borough of Aliquippa. Defendant was driving a Buick sedan in a westerly direction on Admiral Street in the same borough. State Highway Route 51 is a main thoroughfare and Admiral Street intersects this main thoroughfare from
[ 189 Pa. Super. Page 324]
the east but does not extend to the west. There were no stop signs or traffic signals at the intersection. Shortly before the accident defendant had traveled northwardly along this main thoroughfare and when he reached Admiral Street he turned right. He drove some distance on Admiral Street, turned his vehicle around and proceeded back toward the intersection. He testified that he was traveling on Admiral Street at 15 miles an hour. Not being aware that he had reached the intersection, he drove into it immediately in front of plaintiff's vehicle, which he did not see until the time of impact. He also testified that he would have stopped had he known he had reached Route 51.
Plaintiff was traveling toward the intersection of Admiral Street at a speed of between 25 and 30 miles per hour in a posted 35 miles per hour zone. When approximately 90 feet from the intersection he noticed defendant on Admiral Street approximately 50 feet from the intersection. Plaintiff took his foot off the gas when he was between 40 and 50 feet from the intersection. He testified that it "looked like he was coming up to stop." When, however, plaintiff realized defendant was not stopping it was too late to avoid the collision and he collided with the left side of defendant's vehicle, causing both personal injury to himself and property damage to his truck. At the end of the charge, which adequately covered the issues and which was free from error, defendant's counsel, upon being asked by the court for "comment," made none and took no exceptions. Having presented a point for binding instructions, which was refused, defendant's counsel filed a motion for judgment n.o.v.
Defendant relies principally upon § 1013 of The Vehicle Code of 1929, P.L. 905, as amended, 75 PS § 572(a), which provides: "When two vehicles... approach or ...