Appeal, No. 289, Oct. T., 1963, from judgment of Court of Common Pleas of Lancaster County, June T., 1962, No. 38, in case of Edgar J. Wilhelm v. James L. Vest. Judgment affirmed.
Daniel H. Shertzer, for appellant.
No argument was made nor brief submitted for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 74]
On November 16, 1961, about two o'clock P.M., at the intersection of Route 222 with Schoeneck Road in Lancaster County, there was a collision between automobiles owned and operated by Edgar J. Wilhelm and James L. Vest, respectively. Wilhelm instituted a trespass action against Vest which was heard by Honorable WILLIAM G. JOHNSTONE, JR., and a jury. After a two-day trial the jury returned a verdict in favor of Wilhelm in the amount of $2,216.52. Vest filed a motion for a new trial, subsequently abandoned, and a motion for judgment n.o.v. The latter motion was dismissed by the court below, and judgment was entered on the verdict. This appeal by Vest followed. Viewing the evidence in the light most favorable to the verdict winner, Costello v. Wyss, 200 Pa. Superior Ct. 568,
[ 202 Pa. Super. Page 75190]
A.2d 170, our examination of this original record reveals the following factual situation:
Route 222 is a heavily traveled two-lane concrete highway, the paved portion being twenty-two feet wide, running generally north and south between Reading and Lancaster. Schoeneck Road is a two-lane blacktop highway, the paved portion being eighteen feet wide, running generally east and west, and crossing Route 222 north of Ephrata. At the intersection in question there are stop signs regulating traffic on Schoeneck Road. Wilhelm was proceeding south on Route 222, and Vest was proceeding west on Schoeneck Road. The weather was overcast, but the highway surfaces were dry. As Wilhelm approached the intersection, his view to the left or east was somewhat obstructed by a high embankment. He looked first to his right and then to his left, and saw nothing. As he entered the intersection he again looked to his left and saw Vest's car about five feet away. The actual impact occurred two feet from the center line in the southbound lane of Route 222. The property damage was at the front of Vest's car and at the left side of Wilhelm's car.Wilhelm's automobile careened to the right and came to a stop against a utility pole at the southwest corner of the intersection.
Appellant does not assert that he was free of negligence. In fact, it is stated in the opinion below that the defendant "concedes his negligence". Appellant's contentions are, first, that Wilhelm was guilty of contributory negligence as a matter of law, and second, that Wilhelm's damages were principally due to striking the utility pole which he could and should have avoided. We perceive no merit in either contention.
(1) In negligence cases, it is plaintiff's duty to make out a case free from contributory negligence; when this is done, the burden of proving contributory negligence ...