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SHUMAN v. NOLFI. (04/18/60)

April 18, 1960

SHUMAN, APPELLANT,
v.
NOLFI.



Appeal, No. 41, March T., 1960, from order of Court of Common Pleas of Beaver County, Sept. T., 1956, No. 177, in case of Nikola Shuman v. Antonio F. Nolfi. Judgment affirmed.

COUNSEL

Leonard J. Paletta, with him James B. Ceris, Gene K. Lynch, James P. McArdle, and McArdle, Harrington & McLaughlin, for appellant.

John D. Ray, with him Ray, Good and Hudson, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 399 Pa. Page 212]

OPINION BY MR. JUSTICE EAGEN.

This is an appeal from a refusal to remove a compulsory non-suit.

The evidence must be viewed in a light most favorable to the plaintiff: Dobb v. Stetzler, 369 Pa. 554, 87 A.2d 308 (1952). The record considered in this manner discloses the following facts. The plaintiff on a fair, dry day in September, 1954, was walking across Hopewell Avenue in the community of Aliquippa, Beaver County, when he was struck by an automobile operated by the defendant and was seriously injured. Hopewell Avenue, an improved public highway, runs north and south, is 30 feet in width, and is divided into three ten-foot traffic lanes. The westerly lane is used for the parking of motor vehicles, the center lane for southbound traffic, and the easterly lane for northbound traffic.

Plaintiff was walking south on the sidewalk on the westerly side of the street when a friend, operating an automobile in a northerly direction in the easterly lane, stopped temporarily, hailed the plaintiff and offered him a ride. Plaintiff was crossing the street from west to east between intersections, in the direction of his friend's automobile, when the accident occurred. At the point where plaintiff started to cross the street, automobiles were parked parallel with and adjacent to the curb. As plaintiff stepped off the curb into the roadway, he saw a truck proceeding south in the westerly lane. He then walked between two parked cars and when he reached the end or outer edge of the parked cars,*fn1 he looked to his left and saw defendant's automobile traveling south in the westerly lane at a point located up the street to the north, the distance to

[ 399 Pa. Page 213]

    which was estimated by other testimony to be 174 feet. Plaintiff then proceeded to take four or five steps into the street and then looked to his left again and saw that the defendant's automobile was right on top of him. The impact followed almost instantly.

Police investigating the accident found two skid marks in the southbound traffic lane where defendant had been traveling, 24feet 3inch in length. They were parallel to the curb. The right, or west, mark was 12feet from the west curb and the left, or east, mark was 2 1/2feet from the line dividing the north and southbound lanes. In front of the right, or west, skid mark were two spots of blood 12feet from the west curb, or 4 1/2feet from the east side of the parked cars. No testimony was offered as to the speed at which defendant's car was traveling. Its damage consisted of a dent on the right front between the headlight and the center of the grill.

At the close of plaintiff's case, the court entered a compulsory non-suit, holding plaintiff guilty of contributory negligence. Subsequently, the court refused to remove the non-suit, not only sustaining the finding of the trial judge that plaintiff was contributorily negligent, but also ruling that negligence on the part of the defendant had not been established.

The lower court's finding that the plaintiff was guilty of contributory negligence as a matter of law was clearly correct. It is axiomatic that the question of contributory negligence should not be taken from the jury's consideration except in a clear case and only when reasonable minds would not legitimately differ as to the conclusion of its existence: Aaron v. Strausser, 360 Pa. 82, 59 A.2d 910 (1948).

It is not negligence per se for a pedestrian to cross a highway or street in the middle of the block: Nugent v. Joerger, 387 Pa. 330, 127 A.2d 697 (1956). In doing so, a pedestrian has a perfect right to rely on the exercise of reasonable care by the drivers of automobiles

[ 399 Pa. Page 214]

    on the highway: Dempsey v. Cuneo Eastern Press Ink Company of Pennsylvania, 318 Pa. 557, 179 A. 220 (1935). However, a pedestrian who crosses a street between intersections is held to a higher degree of care than one who crosses on a crosswalk at a street intersection, and, by the same token, the driver of an automobile is held to a correspondingly lesser degree of care: Harris v. DeFelice, 379 Pa. 469, 109 A.2d 174 (1954); Rucheski v. Wisswesser et al., 355 Pa. 400, 50 A.2d 291 (1947). It is equally well established that a pedestrian, particularly one crossing between intersections, must not only look before starting to cross the street but must continue to look as he proceeds across. Otherwise, he is guilty of negligence as a matter of law: Aaron v. Strausser (supra); Goldberg v. Kelly, 340 Pa. 430, 17 A.2d 390 (1941); Rafferty v. DiJohn, 390 Pa. 123, 135 A.2d 375 (1957); Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957); Dwyer v. Kellerman, 363 Pa. 593, 70 A.2d 313 (1950).

In the instant case, the plaintiff looked before he started to cross the roadway but it is crystal clear that he did not continue to look as he proceeded to cross the busy thoroughfare. This in itself convicted him of contributory negligence. It was a clear violation of his definite obligation, even if no approaching traffic were visible before he undertook to cross. But, it was even more incumbent upon him to continue to look as a reasonably prudent man interested in his own safety would do, in view of the fact that, before he started to cross, he saw the automobile of the defendant approaching from a comparatively short distance away. His own foolhardiness in blindly jay-walking across a busy street at least contributed to this unfortunate occurrence. This renders recovery impossible under a long line of Pennsylvania authorities.

Disposition

The judgment of the lower court is ...


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