Appeal, No. 114, March T., 1963, from judgment of Court of Common Pleas of Indiana County, June T., 1961, No. 156, in case of Teddy Hronis v. Marietta Wissinger. Judgment reversed.
Earl R. Handler, with him Handler & Malcolm, for appellant.
James W. Mack, Jr., for appellee.
Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
In this personal injury action, the jury returned a verdict for the defendant. A new trial was denied and the plaintiff appeals from the judgment entered upon the verdict.
The basic facts, which are not in serious dispute, are as follows: The plaintiff, a pedestrian, was walking across a public street between intersections. He had succeeded in traversing almost the entire roadway when he was struck by an automobile operated by the defendant. At the of contact, the plaintiff was
completely beyond the traffic area of the street, and had reached a point two or three feet from the curbline, in an open area adjacent to the curb reserved for parallel parking. The defendant's automobile was backing into the parking space. No horn or warning signal was sounded.
In defining the responsibilities of the parties involved, the trial judge treated the case as if it were one wherein a pedestrian was hit by a forward moving automobile in between intersections. He charged, inter alia, "A pedestrian who crosses a street between intersections is held to a higher degree of care than one who crosses on a crosswalk at a street intersection, and by the same token the driver of an automobile is held to a correspondingly lesser degree of care." (Emphasis supplied).
While this is a correct statement of the law, it has no application to the facts here present. As noted before, this is a "backing up" case and the vigilance required of the defendant-driver was much different than that demanded of the operator of a forward moving automobile in between intersections.
As stated in Potter Title and Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76 (1951), at 245, 246: "The backing of a vehicle necessarily entails more or less limitation of view by the driver over the road to be traversed, and thus demands a corresponding increase of vigilance on his part to avoid causing injury to persons likely to be in his path." Accord, Caulton v. Eyre & ...