Appeals, Nos. 91, 140 and 145, March T., 1962, from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1958, No. 2852, in case of Frank J. Topelski v. Universal South Side Autos, Inc., Francis J. Crane, Jr., and County of Allegheny. Judgments against Crane and Universal affirmed; judgment against County reversed.
Frederick N. Egler, with him Reed and Egler, for defendant, appellant.
John R. Bredin, with him Pringle, Bredin & Martin, for defendant, appellant.
William Claney Smith, with him Lisle A. Zehner, and Smith & Zehner, and Maurice Louik, Solicitor, for Allegheny County, additional defendant, appellant.
T. Robert Brennan, with him Brennan and Brennan, for plaintiff, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
On September 1, 1957 at about 2:30 p.m. Frank J. Topelski (Topelski), a police officer of Allegheny County (County) on a county-owned motorcycle in the line of duty, was escorting three automobiles containing as passengers "Lone Ranger", "Tonto" and other television entertainers in an easterly direction along East Carson Street, Pittsburgh. At the intersection of East Carson and South 18th Streets, the motorcycle operated by Topelski and a 1953 Mercury automobile owned by Francis J. Crane, Jr. (Crane) and being operated by him in a northerly direction on South 18th Street collided.
On December 27, 1957, Topelski instituted a trespass action for damages arising from the accident against Crane and Universal South Side Autos, Inc. (Universal) in the Court of Common Pleas of Allegheny County. Crane then joined as an additional defendant the County alleging that the County was either solely or jointly liable by reason of its negligent acts as Topelski's employer. The County filed an answer and counterclaim in the latter of which it asked recovery for salary, medical and hospital expenses paid to or for Topelski. The case was tried before Judge HOMER S. BROWN and a jury. The jury found Crane, Universal and the County guilty of negligence and awarded a verdict in favor of Topelski in the amount of $50,000 against all three defendants and the verdict as moulded found in favor of Crane and Universal
against the County on the County's counterclaim. Universal and Crane moved for judgment n.o.v. and the County moved for judgment n.o.v. and a new trial. All these motions were refused and judgments entered on the verdict. Crane (Appeal No. 140) and Universal (Appeal No. 91) appealed from the refusal of judgment n.o.v. only. The County (Appeal No. 145) has appealed from the refusal of judgment n.o.v. and the refusal of a new trial.
In Crane's appeal, his sole contention is that Topelski was contributorily negligent as a matter of law. In Universal's appeal, the contention is that, in addition to Topelski being guilty of contributory negligence as a matter of law, Topelski had failed to prove any negligent conduct on Universal's part which was the proximate cause of the accident. In the County's appeal, the County contends that it is entitled to a judgment n.o.v. because the evidence was not sufficient to sustain the verdict against it or, in the alternative, it is entitled to a new trial because the court below erred in moulding the verdict and in failing to recognize the County's subrogation rights for payments made to or for Topelski.
Contributory Negligence of Topelski
Topelski testified that, as he proceeded on his motorcycle eastwardly on Carson Street, he stopped at the intersection of Carson and 18th Streets and, at that time, the traffic light was green for traffic proceeding on Carson Street. He stated: "Before I entered the intersection I looked to my left, that would be down 18th Street, and then I looked to my right, and I saw one car coming down 18th Street" in a northerly direction; Topelski raised his hand to the oncoming car to stop and that car did stop; Topelski looked to the left again and saw nothing, looked in his rearview mirror to see
where his convoy was and continued at approximately five miles per hour; he then stated: "I looked to the right as I kept moving down the intersection" and stated that, as he "paused at the intersection", he "looked to his right". Under this testimony, Topelski, with a green light in his favor, did look both to his right and left before proceeding into the intersection; there was no traffic approaching from the left and the automobile which he did see approaching from his right stopped in obedience either to his signal or to the red light against traffic proceeding on 18th Street. Furthermore, Topelski blew his siren, proof of which is upon this record. The Crane automobile came from behind the stopped automobile on South 18th Street, passed the stopped automobile and proceeded into the intersection where it collided with Topelski's motorcycle.
In Enfield v. Stout, 400 Pa. 6, 161 A.2d 22, we recently stated "Declaring an individual guilty of contributory negligence as a matter of law should be done only where the conclusion is inescapable: [citing a case]". (p. 12). Our review of this record indicates that the circumstances are such that contributory negligence could not be declared as a matter of law. As Topelski approached this intersection, according to his testimony, the traffic signal was green and he had the right to assume that this traffic signal, red as to 18th Street, would be obeyed by traffic on that street: Zurcher v. Pittsburgh Railways Co., 353 Pa. 212, 44 A.2d 581; Koehler v. Schwartz, 382 Pa. 352, 115 A.2d 155. Topelski, however, did not place full and complete reliance on the traffic signal because, at the intersection, he looked in both directions before proceeding into the intersection. To his right he saw one automobile approaching in a northerly direction and, before he proceeded, he made sure that that car had stopped and he rightfully assumed that all following traffic would
likewise stop. He then looked to his left and, as was his duty, looked to his rear to check the convoy which he was under a duty to escort. He had no reason to anticipate that a car would swoop out from the rear of the stopped automobile on 18th Street, swing around that vehicle and enter the intersection to which he was committed at the time. The language of Justice (later Chief Justice) MAXEY in Graff v. Scott Bros., Inc., 315 Pa. 262, 172 A.2d 659, is particularly apposite: "He not only looked ahead but he looked to the right, where he saw the halted cars. He was under no obligation to look far down the street to ascertain whether or not some motorist was coming at a reckless rate of speed which would carry him across the intersection in defiance of the red traffic signal. Furthermore, in his calculations, he had the right to assume traffic from his right would stand still until it was given the green signal. ..." (pp.266, 267) In our view, the question of contributory negligence was solely for the jury and judgment n.o.v. could not be entered on the ground that Topelski was contributorily negligent as a matter of law. Since this is the only ground of Crane's appeal, that appeal cannot be sustained.
Evidence of Negligence on Universal's Part which was the Proximate Cause of the Accident
Two days prior to this accident, Universal sold to Crane the 1953 Mercury automobile which at that time was on a used car lot over which was a large sign reading "Guaranteed" which Universal's president stated referred to the cars on the lot. On August 1, 1957 - one month before the accident - Universal's record indicated that car's mileage at 48,860 miles. Twenty days after the accident the car's mileage was 48,947 ...