Appeal, No. 257, Jan. T., 1961, from judgment of Court of Common Pleas of Delaware County, March T., 1956, No. 887, in case of Joseph E McKniff v. Thomas D. Wilson. Judgment reversed.
Edward H. P. Fronefield, with him Joseph T. Labrum, Jr., and Lutz, Fronefield, Warner & Bryant, for appellant.
Melvin G. Levy, with him Albert Blumberg, Donald H. Hamilton, and McClenachan, Blumberg & Levy, for appellee.
Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
Plaintiff was struck and seriously injured by an automobile, operated by the defendant, and sued for damages. Judgment upon the verdict was entered, following the lower court's denial of defendant's motions for judgment non obstante veredicto and a new trial. This appeal followed.
It is argued that plaintiff's own evidence convicts him of contributory negligence as a matter of law.
The accident happened about 12:15 a.m. on May 16, 1954. The weather was clear and dry. At that time, the plaintiff owned and operated a sandwich shop on the northwesterly corner of Ridge Road, and Huddell Street in Linwood, Delaware County. Ridge Road, 42 feet wide, running east and west, consists of four concrete traffic lanes, and parking was permitted in the northernmost lane. Hewes Avenue is the next street west of the intersection of Ridge Road and Huddell Street and intersects Ridge Road from the north only. Ridge Road
is a gradual downgrade in a westerly direction toward Hewes Avenue.
After closing his shop, the plaintiff and his wife walked west on the sidewalk abutting the northerly side of Ridge Road to the point where his automobile was parked, on the northerly side of the street, facing west, about halfway between Huddell Street and Hewes Avenue. After helping his wife into the automobile, the plaintiff turned and walked to the right rear thereof. He stopped on the curb and looked to his left in an easterly direction and then to his right in the opposite direction. No cars were approaching in either direction. Plaintiff then stepped off the curb and proceeded to the left rear end of the car. He again hesitated and looked to his left and his right. The road being clear of oncoming traffic, he walked to the left front door of his car with the intention of entering it. As the plaintiff reached the left-hand front door, he saw, for the first time, the lights of an automobile approaching from an easterly direction. He shouted to his wife, "this car isn't going to stop" and immediately took side steps alongside of his car to get to the front end of it and out of the pathway, being only inches away from his car while so doing. Before he could reach a place of safety, he was struck by the defendant's automobile, traveling west, and as a result was thrown over the hood of his own car, his body coming to rest partially on the sidewalk and partially on the street. There was evidence that the defendant's car was traveling at a rate of speed of 40 miles per hour in a 35 mile per hour zone. Following the accident, the defendant admitted to an investigating police officer that he didn't see the plaintiff until his car hit him. Ridge Road is lighted by four overhead lights in the block involved.
Contributory negligence as a matter of law should be declared only in a very clear case and only where the evidence of such is ...