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SWEIGERT v. MAZER (01/21/63)

January 21, 1963

SWEIGERT
v.
MAZER, APPELLANT.



Appeal, No. 410, Jan. T., 1962, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1958, No. 3013, in case of Earle W. Sweigert v. George Mazer. Judgment reversed; reargument refused March 20, 1963.

COUNSEL

Joseph X. Heincer, with him Robert C. Kitchen, for appellant.

J. Paul Erwin, Jr., with him George E. Beechwood, and Beechwood and Lovitt, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 410 Pa. Page 72]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

The primary issue presented herein is whether Earle W. Sweigert, the plaintiff in this trespass action, was guilty of contributory negligence as a matter of law so as to compel the grant of a judgment n.o.v.

At approximately 1:00 p.m. on July 11, 1957 - a clear day with visibility good - Sweigert parked his

[ 410 Pa. Page 73]

    automobile along the west curb of 15th Street in Philadelphia and crossed 15th Street from west to east to enter a fruit store located approximately opposite the parked Sweigert automobile. 15th Street runs generally north-south and is approximately 36 feet in width with - at that time - one set of streetcar tracks the easternmost rail of which was twenty-four feet from the east curb. At the time of the accident, 15th Street was a one-way street for southbound vehicular traffic. There were no cars parked on the east side of 15th Street northward toward Market Street which intersects 15th Street at right angles and runs generally east and west; on the west side of 15th Street was Sweigert's automobile.

After Sweigert left the fruit store he proceeded to cross from east to west on 15th Street en route to his automobile. At the point where Sweigert proceeded to cross there was no regular pedestrian crossing and Market Street was 80 to 90 feet to the north. Sweigert testified that at the east curb he looked north toward Market Street - the direction from which any vehicular traffic might be anticipated - and "there was no traffic nearer than Market Street, when [he] started to cross the street." Sweigert further stated that he continued to look north as he crossed the street and first saw the automobile owned and operated by George Mazer when it was "one or two car lengths" from him at which time he jumped back trying to avoid being struck and was struck. Sweigert had almost reached the middle of 15th Street when he was struck by the left front fender of Mazer's car.

Sweigert instituted an action of trespass against Mazer in Court of Common Pleas No. 2 of Philadelphia County and, after a trial before a court and jury, a verdict was returned in favor of Sweigert and against Mazer in the amount of $9,000. ...


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