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SZAWLINSKY v. CAMPBELL (03/13/61)

March 13, 1961

SZAWLINSKY
v.
CAMPBELL, APPELLANT.



Appeal, No. 359, Jan. T., 1960, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1956, No. 2975, in case of Michael Szawlinsky v. Honey Campbell. Judgment affirmed.

COUNSEL

Lynwood F. Blount, for appellant.

John Michael Doodan, for appellee.

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

Author: Musmanno

[ 402 Pa. Page 652]

OPINION BY MR. JUSTICE MUSMANNO.

On December 14, 1956, Michael Szawlinsky, the plaintiff, was seriously injured when he was struck by an automobile belonging to Honey Campbell, the defendant. He brought suit against Campbell and recovered a verdict of $10,000. From the trial court's refusal to enter judgment n.o.v. or a new trial, the defendant appealed to this Court.

The defendant argues here that the plaintiff's verdict may not be sustained because he was guilty of contributory negligence as a matter of law. In Metro v. Long Transportation Company, 387 Pa. 354, we affirmed the following cardinal rule regarding review of a trial record: "On ruling on a motion for judgment n.o.v. we are required to view the testimony in the light most advantageous to the plaintiff and to resolve all conflicts therein in his favor and he is to be given every benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence; and in addition the plaintiff is entitled to have the evidence supporting his verdict considered and all the rest rejected."

In conformity with that rule, the story of the accident in this case may be reconstructed as follows. Michael Szawlinsky disembarked from a streetcar at the corner of 24th Street and Girard Avenue in Philadelphia at about 5:30 on the evening of December 14, 1956. From the sidewalk on the north side of Girard Avenue, he proceeded in a southwardly direction to cross Girard Avenue which, accommodating two streetcar tracks, runs east and west. Before committing himself to the crossing he looked to his left, that is toward the east, and observed automobile headlights

[ 402 Pa. Page 653400]

to 500 feet away and he assured himself he could easily negotiate the 40-foot width of Girartd Avenue before the cars from the east arrived at the intersection.

Looking to his right Szawlinsky's view was limited to about 150 feet because of a curve in the street at this point. As he approached the third of the four rails in the direction he was heading, he now saw advancing from his right several cars traveling in an eastwardly direction. He stopped to allow these eastbound cars to pass him and, while in this stopped position, the defendant's car bore down on him from his left and struck him.

Appraising this picture of the event, reproduced from the record with the chalks, directions, and distances approved by the jury in its verdict, nothing appears to mar the legality of a prima facie case in behalf of the plaintiff. The defendant, however, would add something to the picture which, if accepted, would throw the entire image out of legal focus. The defendant says that when the plaintiff was only three feet away from the north curb of Girard Avenue, proceeding south across the thoroughfare, he saw automobiles only 50 feet away advancing toward him from his left. The defendant argues that, in the light of this situation, the plaintiff was guilty of ...


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