Appeal, No. 430, Oct. T., 1960, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1956, No. 9699, in case of Asbury Caine v. Joseph E. Collins. Order refusing to enter judgment n.o.v. affirmed; order granting a limited new trial reversed and judgment entered on verdict.
James M. Marsh, with him Gerald A. Dennehey, and LaBrum and Doak, for appellant.
James Francis Lawler, with him Levy Anderson, and Ostroff, Lawler & Baker, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 194 Pa. Super. Page 232]
Asbury Caine filed a complaint in trespass against Joseph E. Collins seeking to recover damages for personal injuries which occurred when, as a pedestrian, he was struck by defendant's automobile at the intersection of Broad and Oxford Streets in the City of Philadelphia. Defendant's motion for a compulsory non-suit was denied, and a point for binding instructions was refused. The jury returned a verdict for the plaintiff in the amount of $5,000.00. The defendant filed a motion for judgment n.o.v., and the plaintiff filed a motion for a new trial limited solely to the question of damages. The court en banc declined to grant defendant's motion, but did grant plaintiff's motion. The defendant has appealed.
The accident occurred on November 3, 1956 at about 9:00 P.M. Plaintiff, aged 69 years, was returning from a visit to his oculist. He was crossing Broad Street from west to east and had safely reached the
[ 194 Pa. Super. Page 233]
cement island in the middle of Broad Street. He continued to cross Broad Street, and was struck in the second traffic lane east of the island. Broad Street at that point is 69 feet wide with three traffic lanes in each direction. The intersection is well illuminated by over-head mercury lights. The weather was clear and the streets dry. As plaintiff started across the southbound traffic lanes, the signal light was green for traffic on Oxford Street and red for traffic on Broad Street. The signal light then changed, and the pivotal issue at the trial was just when this change occurred. Plaintiff himself testified as follows: "I can't remember exactly whether it was a red light or not ... I really don't remember what light it was". Ronald Walker, an attendant at a service station located at the southeast corner of Broad and Oxford Streets, testified that plaintiff was "about three-quarters of the way" across Broad Street when the light changed.
Appellant testified that he was proceeding north on the east side of Broad Street at about 25 miles per hour; that the signal light changed from red to green when he was halfway between Jefferson Street (to the south) and Oxford Street; that he was in the second lane east of the island, several car lengths behind a car being operated to his left in the first traffic lane east of the island; that the car in the first traffic lane came to a stop and appeared to be about to make a left-hand turn; and that plaintiff suddenly appeared without warning directly in front of his car. The defendant's testimony was corroborated by that of Joseph Juavinett, the operator of the car in the first traffic lane, and also by that of Benjamin Floyd, a pedestrian who was crossing Broad Street from east to west. Floyd testified as follows: "Q. Tell us what happened. A. Just before I got there, the light was red on Broad Street. Just as I entered Broad Street, they turned
[ 194 Pa. Super. Page 234]
green. Q. How far did you enter Broad Street? A. I'd say about one-fourth of the way, not quite to the cement divider. Q. Going east to west? A. Yes. And just as I hit the cement center, this gentleman here was crossing over and I said, 'Hey, Mister, watch those cars'. And he was walking slow and he didn't seem to hear me, and a car was coming on the inside curb I'd call it. Q. The car was coming on the inside? A. Next to the cement center. Q. When you refer to the cement center, you mean the island there? A. Yes. Q. Had you almost approached that island? A. No. When it turned green, I was about half-way there and I jumped to the island and I said, 'Hey, Mister, watch those ...