Appeal, No. 1, March T., 1960, from judgment of Court of Common Pleas of Greene County, Sept. T., 1958, No. 108, in case of Ruth Lang Cleavenger, trustee ad litem v. Walter G. Zebraskey et al. Judgment reversed; reargument refused May 26, 1960.
W. Robert Thompson, with him John E. Baily, and Thompson and Baily, for appellant.
Ira B. Coldren, Jr., with him R. Wallace Maxwell, I. Burdette Coldren, and Coldren & Coldren, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
This is an appeal from the Court of Common Pleas of Greene County which entered a judgment n.o.v. in favor of the defendants after the jury had returned a verdict for the plaintiffs in a trespass action based on an automobile collision in which the plaintiffs' decedent was killed as a result of the alleged negligence of one Walter G. Zebraskey.
To announce the rule that in reviewing the evidence in a case of this character, we are to read it in the light most advantageous to the verdict-winners seems as superfluous as declaring that we are a court of review. However, we still mention the rule in order to give completeness to the opinion and at the same time point out that a court en banc is equally a court of review and that, in passing upon a motion for judgment n.o.v. it must also be guided by that same rule. It would appear, however, that the court below treated the jury's verdict as mere speculation and it proceeded to re-evaluate, re-appraise, and re-decide the facts as if it were a tribunal passing initially on a controverted factual situation, which, of course, it has no right to do.
The essential facts in the case at bar are brief and not complicated. On January 6, 1958, at about 7 p.m., Fred D. Cleavenger, forty years of age, was driving his automobile, known as a British M.G. in a southwardly direction on Route 121 (the Morgantown Road), at a speed indicated to be slightly more than 50 miles per hour. At a point in Dunkard Township, Route 616 (the Taylortown Road) leads into the Morgantown Road, forming a T intersection. At the time stated, Walter G. Zebraskey, driving a Ford Sunliner convertible, was traveling in an eastward direction on the Taylortown Road, with the intention of turning left at the T intersection and proceeding northwardly on the Morgantown Road. At this point, an embankment on the left of the Taylortown Road impedes a full view of the Morgantown Road, as one would look in a northward direction. Zebraskey halted at the Stop Sign, which notified him of the through highway ahead, and then started forward just as Cleavenger came down the highway (there is a descending 5% grade along this stretch.) The inevitable and ensuing collision actually occurred on the farther side of the Morgantown Road, that is, in the northbound lane. Cleavenger sustained fatal injuries. Zebraskey escaped without a scratch.
Since the Morgantown Road is a through highway, it was Zebraskey's duty to give way to the Cleavenger car unless, of course, he was so far ahead of Cleavenger when he reached the intersection, that he could cross over in safety. Was he that far ahead to justify his proceeding forward? When Zebraskey arrived at the intersection, did he observe the rules of the highway? Did Cleavenger use due care? These and kindred questions were for the jury to decide and we cannot say, from studying the record, that they ignored the evidence and returned a verdict contrary to law.
In its opinion, the lower court said: "Under the facts in this case, assuming every inference favorable to the plaintiff, there is not one particle of proof in the evidence ...