Appeals, Nos. 470 and 471, Oct. T., 1959, from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1954, Nos. 3204 and 5345, in case of Catherine Costello et al. v. Nicholas Fusco et al., and Melba Campilia v. Same. Order reversed.
J. Webster Jones, for additional defendant, appellant.
Bernard J. Smolens, with him John J. McDevitt, III, for original defendant, appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 191 Pa. Super. Page 643]
These are appeals from an order entered in two cases by the court below granting judgment n.o.v. in favor of a defendant and against a co-defendant and additional defendant.
In considering a motion for judgment n.o.v. we must view the evidence and the inferences therefrom in the light most favorable to the one having the verdict.
On November 10, 1953 Frank Campilia was operating his automobile in a westerly direction on Christian Street at or about its intersection with Passyunk Avenue, in Philadelphia. Catherine Costello and Melba Campilia were passengers in his car. A tractor-trailer, owned by Nicholas Fusco and operated by Joseph Catarella, was proceeding north on Passyunk Avenue. Campilia stopped for a red light at Christian Street and Passyunk Avenue and he looked to his left and saw the defendant's tractor-trailer two blocks away. When the light turned green, Campilia again looked to his left and saw the tractor-trailer about 40 feet away and "it looked like he was ready to stop." When the Campilia car was more than half way across the street, the tractor-trailer came through the red light and struck its left rear, injuring the two passengers.
As a result of the accident, two suits were instituted, one suit by Catherine Costello and Eugene Costello against Nicholas Fusco and Frank Campilia and the other by Melba Campilia against Nicholas Fusco. Frank Campilia was joined as an additional defendant. In both cases the jury found in favor of the plaintiffs
[ 191 Pa. Super. Page 644]
and against Nicholas Fusco. The court below granted new trials at which the defendant Fusco presented points for binding instructions, which the court below refused. The jury again found in favor of the plaintiffs and against Nicholas Fusco alone. The court then granted judgment n.o.v. in both cases, in favor of Fusco and against Campilia.
The evidence was clearly sufficient to compel the court to submit the question of the negligence of both defendants to the jury. Certainly Frank Campilia was not negligent as a matter of law. He looked twice to his left and saw the tractor-trailer both times. The second time it was 40 feet away and looked like it was going to stop for the red light. To proceed into an intersection under such conditions, especially when one ...