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CARDIFF v. UPDEGRAVE (01/21/63)

January 21, 1963

CARDIFF
v.
UPDEGRAVE, APPELLANT.



Appeal, No. 329, Jan. T., 1962, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1960, No. 118, in case of Agnes Cardiff v. Ronald M. Updegrave. Judgment affirmed.

COUNSEL

Howard M. Girsh, with him Manuel Steinberg, for appellant.

John J. O'Brien, Jr., for appellee.

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

Author: Musmanno

[ 409 Pa. Page 536]

OPINION BY MR. JUSTICE MUSMANNO

On July 20, 1959, Mrs. Agnes Cardiff, 77 years of age, having finished a walk in a park close to her home, started across East Olney Avenue in Philadelphia, carrying in one hand an umbrella and holding with the other a leash, at the end of which was attached a boxer dog which she was leading and which also was helping her across the street to her home on the south side of the thoroughfare. While making this passage she was struck by a car being driven by Ronald M. Updegrave, defendant in this case, sustaining serious injuries. She brought suit against Ronald Updegrave and in the ensuing trial the jury returned a verdict in her favor in the sum of $9,000. The defendant seeks judgment

[ 409 Pa. Page 537]

    n.o.v., arguing that Mrs. Cardiff was guilty of contributory negligence because she crossed between street intersections and she failed to look in the direction from which the defendant's automobile approached her.

The fact, alone, that the plaintiff crossed between intersections does not convict her of contributory negligence as a matter of law. In Nugent v. Joerger, 387 Pa. 330, 332, this Court said: "The tempo of the twentieth century being what it is, the law recognizes that a pedestrian is entitled to cross in the middle of a block in order to gain a few seconds' time which will hasten him on to his destination. However, some limitations are placed on that permitted acceleration of pace. He may not cross without observing certain rules which generally have proved efficacious in saving foot passengers fro automobilists, who, in hurrying to meet a destiny of their own, might ignore human beings in the path before them. Whether, and to what extent, a pedestrian and an automobilist obey the rules which, in a double adherence, would skirt every danger and avert collision, is a question of fact for the jury to decide." (Emphasis supplied)

In the absence of conspicuous and vivid circumstances of peril which do not exist in this case, the jury determines whether one, failing to use an established pedestrian crossing, undertakes a risk so palpable that he or she will not be allowed to recover despite the negligence of the defendant.

The lower court in refusing judgment n.o.v. said: "Clarkson Street forms a bisection with the North side of East Olney Avenue. Accordingly, one crossing Olney Avenue from the park does not have a well defined path as at an intersection."

To the right of the plaintiff, as she proceeded to her home, East Olney Avenue ascends to a crest, beyond which a car approaching from the west is invisible. The crest ...


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