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KENNEDY v. BALOGH. (12/30/59)

December 30, 1959

KENNEDY, APPELLANT,
v.
BALOGH.



Appeal, No. 195, March T., 1959, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 2372, in case of Joseph Kennedy v. Joseph Balogh et al. Judgment affirmed. Trespass for personal injuries and property damage. Before KENNEDY, J. Verdict entered for defendant, plaintiff's motion for new trial refused and judgment entered on verdict. Plaintiff appealed.

COUNSEL

James A. Ashton, for appellant.

David J. Armstrong, with him Dickie, McCamey, Chilcote & Robinson, for appellee.

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

Author: Jones

[ 397 Pa. Page 639]

OPINION BY MR. CHIEF JUSTICE JONES

In this action for damages for personal injuries, received in an automobile accident, the jury returned a verdict for the defendant. The plaintiff moved for a new trial which the court en banc refused and entered judgment on the verdict. The plaintiff has appealed and assigns for error alleged refusal of the trial judge to receive and pass upon submitted points for charge and for several alleged errors in the court's charge.

The accident in which the plaintiff received the injuries in suit occurred on a night in March on Ohio Avenue, in the Borough of Glassport, Allegheny County. In the area where the accident occurred, Ohio Avenue is wide enough to accommodate four lanes of traffic. Streetcar tracks occupy the two inside lanes and there was testimony indicating that cars were permitted to park along the sides of the street in the outside lanes, so that, actually, only the two center lanes were available for moving vehicular traffic in opposite directions.

As the plaintiff was driving his automobile south on Ohio Avenue, a truck loaded with planks emerged from a parking lot on the east (or plaintiff's left) side of Ohio Avenue. The truck crossed over the two northbound lanes and turned left on the southbound side of the Avenue. At the time the truck turned onto the southbound side of the Avenue, the plaintiff's car was between 50 and 200 feet away. The point at which the truck had entered the Avenue was between 75 and 125 feet north of the intersection of Ohio Avenue and Broadway Street. The truck, followed by the plaintiff's car, proceeded south on Ohio Avenue until it

[ 397 Pa. Page 640]

    came to the intersection with Broadway Street where it started to make a left turn. As the truck was turning, its left side either struck or was struck by the automobile of the plaintiff who was attempting to pass the truck at the intersection.

The plaintiff instituted his action in trespass against Joseph Balogh, the owner of the truck, and Joseph's brother, Frank, who was operating the truck at the time of the accident. By agreement of counsel at trial, the court entered a compulsory non-suit as to Joseph Balogh, which action is unquestioned and of no moment on this appeal.

There were a number of sharp conflicts in the testimony adduced by the respective sides on material issues. According to the plaintiff's testimony he was in the left, or inner, southbound lane, i.e., the streetcar track lane, when he attempted to pass the truck and the truck turned to the left from the right, or outside, curb lane. The defendant and three disinterested witnesses, whom he called, all testified that the truck turned left from the left, or inner, southbound lane. The plaintiff testified that he was traveling between 20 and 25 miles an hour at the time he attempted to pass the truck, whereas three witnesses for the defendant testified that the plaintiff's speed at the time was between 50 and 60 miles an hour. The plaintiff also testified that the ...


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