Appeal, No. 52, Jan. T., 1961, from judgment of Court of Common Pleas of Montgomery County, June T., 1956, No. 141, in case of Elsie C. Brown v. Gordon Hyde Jones, Jr. Judgment reversed.
John P. McKenna, with him Drew J. T. O'Keefe, for appellant.
Frank R. Ambler, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
On the evening of December 29, 1954, Mrs. Elsie C. Brown purchased at an A. & P. store in Bryn Mawr, Lower Merion Township, such an abundance of groceries that four large shopping bags were needed to contain them, and the services of a grocer's clerk were required to assist in carrying the cargo. The clerk hauled
three of the bags in a shopping cart called a "store glider," while Mrs. Brown carried the fourth bag in her left hand, as she clutched in her right hand an open umbrella since it was now raining. Her destination was her home, located on Elliott Avenue on the southern side of Lancaster Avenue on which the store abutted.
Instead of moving westwardly on Lancaster Avenue to Elliott Street where she could have crossed over Lancaster Avenue at a regular intersection, she and her escort proceeded diagonally across Lancaster Avenue between intersections because of the smooth driveways on either side of this thoroughfare which afforded smooth trackage for the store glider.
As Mrs. Brown and the clerk approached the middle of Lancaster Avenue, they saw a truck coming on from the west and they stopped close to the center line to let the truck go by. At the same time a car was advancing from the east. The clerk signaled this car (being operated by the defendant Gordon Hyde Jones) to stop, but as the driver manifested no intention of stopping, the clerk stepped over the center line in order to avoid being hit. At this moment, or shortly before, the defendant, according to his explanation, was blinded by the high beams of cars coming toward him. He then saw the white coat of the grocer clerk and then the silhouette of Mrs. Brown. The car struck Mrs. Brown, inflicting upon her serious injuries.
Mrs. Brown brought an action in trespass against Jones and the jury returned a verdict for the defendant. The plaintiff moved for a new trial which the lower court refused and this appeal followed.
In his charge to the jury, the trial judge said: "Now the mere fact that the plaintiff was injured on this evening does not prove anything so far as you are concerned, except there was just another one of those ...