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PALMER v. MCKINNEY (11/09/59)

November 9, 1959

PALMER
v.
MCKINNEY, APPELLANT.



Appeal, No. 128, March T., 1959, from judgments of Court of Common Pleas of Cambria County, June T., 1958, No. 508, in case of Donald W. Palmer et ux. v. Thomas McKinney. Judgments reversed; reargument refused December 8, 1959. Trespass for personal injuries and property damage. Before GRIFFITH, J. Verdicts for plaintiffs in total amount of $10,005.01, defendant's motion for judgment n.o.v. refused and

COUNSEL

James Francis O'Malley, with him Yost & O'Malley, for appellant.

Samuel R. DiFrancesco, for appellees.

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

Author: Bok

[ 397 Pa. Page 428]

OPINION BY MR. JUSTICE BOK

At noon of a rainy day in September, 1957, Mrs. Palmer, the plaintiff, was driving on Central Avenue towards Johnstown. She stopped at a red light, and as she started again she looked in her rear mirror and saw nothing behind her.

She was driving in the outermost lane of a street forty feet wide which had four lanes. The outer lanes of both the inbound and outbound sides were smooth concrete and the inner two were occupied by two sets of streetcar rails and rough cobble. A witness said that four cars could travel abreast but that the surface within the rails was very rough and not fit to travel on.

Although there was rain, visibility was good. Mrs. Palmer went fifty yards from the traffic light and saw two cars legally parked in her lane in front of a restaurant. She was not driving over twenty-five miles per hour but slowed to fifteen or twenty when she pulled out partly in the other line to pass the parked cars. She did not pass them because just as she was

[ 397 Pa. Page 429]

    ready to do so she was hit in the rear by defendant's car. Another witness said that she was hit squarely by a car that was directly behind her.

Mrs. Palmer testified that she never saw the other car, that she did not look before moving into the next lane, nor did she give a ...


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