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FRISINA v. DAILEY (04/20/59)

April 20, 1959

FRISINA
v.
DAILEY, APPELLANT.



Appeal, No. 62, March T., 1959, from judgment of Court of Common Pleas of Armstrong County, June T., 1958, No. 45, in case of Jennie Frisina, administratrix of the estate of Giovanni Frisina, also known as John Frisina, deceased, and as trustee ad litem v. Lawrence H. Dailey. Judgment affirmed.

COUNSEL

W. Davis Graham, for appellant.

B. Albert Bertocchi, for appellee.

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

Author: Musmanno

[ 395 Pa. Page 281]

OPINION BY MR. JUSTICE MUSMANNO

On December 27, 1957, at about 6:40 p.m., John Frisina, 70 years of age, was crossing 14th Street in Ford City, when he was struck by an automobile owned and operated by Lawrence H. Dailey, sustaining injuries from which he died the following day. His widow, Jennie Frisina, administratrix of the estate of the decedent and as trustee ad litem for all persons entitled to recover damages, brought a suit of trespass under the Death and Survival Acts against Lawrence Dailey, recovering money verdicts which are here not in dispute.

The defendant asks this Court to enter judgment n.o.v., arguing that the plaintiff failed to make out a case of negligence against him and that in any event the decedent was guilty of contributory negligence. Looking at the accident as it unfolded in narrative in the courtroom, we conclude that the jury was justified in finding that Dailey was negligent and that Frisina could not be declared guilty of contributory negligence as a matter of law.*fn1

[ 395 Pa. Page 282]

Fourteenth Street, on which the fatal accident occurred, runs east and west and is 30 feet wide. It is intersected by Fourth Avenue, running north and south and is 38 feet wide. Dailey, the defendant, was driving his Chevrolet Sedan westwardly on Fourteenth Street. The pedestrian, Frisina, was crossing from the southerly curb to the northerly curb of Fourteenth Street. He had practically completed the passage, being only 2 1/2 feet from the northerly curb of Fourteenth Street when Dailey's car violently collided with him. The intersection was well lighted and the defendant's headlights were burning. Yet he testified that he did not see Frisina at any time: "Q. I believe you testified that you looked in all directions; is that correct? A. That is correct.Q. And you didn't see Mr. Frisina anywhere? A. No, sir.Q. When was the first time you saw Mr. Frisina? A. When I got out of the car and walked to the rear of the car and looked down. Q. You didn't know what you had struck? A. No. sir. ... Q. You have no recollection of seeing a body?A. No sir. Q. Flying above the hood of your car and coming down on the fender? A. No sir."

A motorist, who says that he did not see a pedestrian so directly in his path that he engages him head-on, places himself in the dock of accountability from which he is not released until he satisfactorily explains why his eyesight failed to tell him what was clearly visible, why his muscular reactions failed to respond to what should have been an instinctive urge to avoid doing injury to others, and what caused the lapse in the unceasing vigilance required and expected of every motorist.*fn2 From the above quoted testimony it is obvious that Dailey did not even begin to make any kind of an explanation as to why the figure of a man, vividly silhouetted before him on an illuminated street, did

[ 395 Pa. Page 283]

    not register on his retina and on his consciousness ...


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