Appeal, No. 369, Oct. T., 1962, from judgment of Court of Common Pleas of Lehigh County, April T., 1960, No. 54, in case of H. Edward Todd, Jr. v. Joseph H. Talatta. Judgment reversed.
John P. Thomas, with him Walker & Walker, for appellant.
William E. Schantz, with him Snyder, Wert, Wilcox, Frederick & Doll, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
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The question here is whether the plaintiff was guilty of contributory negligence as a matter of law. Since the court below gave judgment for the defendant notwithstanding the jury's verdict for the plaintiff, we must view the evidence most favorably to the plaintiff in determining whether the verdict was properly set aside.
The plaintiff's testimony is that he was driving south on Kearney Street in the City of Allentown and, while crossing Livingston Street, which is twenty-two to twenty-five feet wide, he was struck by the defendant's car coming east on Livingston Street. About two-thirds of the width of the defendant's car and the actual point of impact were in the westbound lane of Livingston Street, so that the defendant's negligence clearly appears under the plaintiff's testimony.
As to the plaintiff's conduct, his testimony was that he was going 15 to 20 miles per hour as he approached
[ 200 Pa. Super. Page 344]
the intersection. When he was about forty feet from the intersection and could see traffic conditions to his right for a distance of approximately one hundred feet, he looked to his right and saw nothing. He then directed his attention to his left, where his vision was partially obscured, and again looked back to the right when he was about even with the curbline. At that time he had removed his foot from the gas pedal and had slowed down to 10 miles per hour. He then saw the defendant's car thirty-five to forty feet away approaching in the westbound lane of Livingston Street. The plaintiff swerved to the left and applied his brakes. He never passed the middle of the intersection. When the impact occurred the front of his car was about twelve feet south of the north curbline of Livingston Street and had not yet reached the center of the intersection. On cross-examination the plaintiff said that at the time of the impact his car was "equivalent to stopped or almost stopped ... It's hard to determine whether it was moving or ... stopped." The defendant was going at least thirty-five miles per hour at the time of impact. The plaintiff further testified on cross-examination that from the time he put his foot on the brake to the time when the impact occurred he traveled approximately twelve feet and the defendant traveled forty feet.
In holding the plaintiff guilty of contributory negligence as a matter of law the court below relied upon the familiar rule that when two vehicles approach an intersection at approximately the same time it is the duty of the driver on the left to yield the right of way (Pugh v. Ludwig, 409 Pa. 517, 186 A.2d 911 (2) (1963), McMillan v. Mor Heat Oil and Equipment Co., Inc., 174 Pa. Superior Ct. 308, 101 A.2d 413 (1953)), and the equally familiar rule that, even if he has ...