Appeal, No. 181, March T., 1960, from order of Court of Common Pleas of Allegheny County, July T., 1956, No. 1501, in case of James J. Segriff, administrator of estate of Michael Segriff, deceased, v. J. R. Johnston. Judgment reversed; reargument refused January 18, 1961.
George Y. Meyer, with him Carl A. Eck, and Mayer, Darragh, Buckler & Bebenek, for appellant.
Edward O. Spotts, with him Leonard E. Price, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiff brought an action for personal injuries; the jury returned a verdict for defendant. The trial Judge died; a substituted Judge granted a new trial for the sole reason that the trial Judge committed basic error in charging that all plaintiff established was the "defendant was slightly remiss*fn* in his duties." Defendant took this appeal.
At approximately 4:30 a.m. on March 31, 1956, defendant was driving his automobile east on Route 28 from New Kensington toward Tarentum. He was driving in his right-hand lane. Michael Segriff, the victim of the accident, had been coming from New Kensington. He was 73 years old; he died a natural death before the trial, and consequently his administrator was substituted. In order to make out a case, plaintiff had to rely on the testimony of defendant - called as on cross-examination - and of a police officer who happened to be following defendant in another automobile. Route 28 at the point of the accident is a three lane highway, 41 feet wide. On the left side of the highway is a paved sidewalk; on the right side where the accident occurred there was no sidewalk, but only a dirt pathway adjoining the curb. There were no buildings along the right side of the highway, but there was a large junk yard opposite the point of the accident. The nearest light was approximately 75 feet from the point of the accident and it and several other lights nearby were on the left-hand side of the road.
Defendant, we repeat, was driving on the right-hand side of the road. Plaintiff's testimony showed that at the time of the accident (and for some time before) it was dark, there was a drizzling rain and visibility was poor. Defendant was driving about 35 miles an hour. He testified that although it was raining and the visibility was poor, he could see approximately 100 feet in front of his car - he was watching the road ahead of him in the vision or range of his automobile headlights and there was nobody there to see and he saw no one. Suddenly defendant felt a bump on the right side of his car and out of the corner of his eye caught a glimpse of an object which he was unable to identify. He was driving approximately 5 or 6 feet from the edge of the dirt pathway and the left wheels of his car straddled the dividing line between the first and second lanes. He brought his car to a stop within approximately 75 feet and went back to discover what had happened. He found Segriff lying near the curb on the right side of Route 28, with his head and feet approximately 2 to 3 feet from the right-hand curb. Officer Novosat, who was following defendant in his automobile, testified for plaintiff that defendant said to him "I did not see the man and I hit him." There were marks on the side of the right front fender of defendant's automobile 8 inches back of the right front headlight, and the radio aerial - which was 2 inches from the windshield on the right side of defendant's car - was bent. There was no damage to or marks on any part of the front of defendant's car. Plaintiff produced no evidence which would justify a finding as to where decedent was at the time of or just before the accident - whether he was in the highway or had stepped from the dirt path, or had come out of the junk area. The officer did not see the accident itself, but corroborated defendant's testimony in all material respects, namely, as to defendant's speed, the weather
conditions, defendant's description of the roadway, and the physical evidence of defendant's car.
This case was obviously one for the jury and the jury, who saw and heard the witnesses and saw the photographs, found in favor of defendant. The charge of the trial Judge, JOHN J. KENNEDY, was able and very fair on the subject of negligence, contributory negligence and a summarization ...