by other witnesses, including the defendant, that his traffic light, nevertheless, was green and that the oncoming vehicle came through a red light, is such a defendant liable as a matter of law? I think not. It is recognized that to create liability negligence must be the proximate cause of the collision. That issue was left to the jury in the instant case. The additional point, as presented, was only half the story, so to speak,
The charge was, of course, given after counsel had made their summations. In each summation counsel strongly contended that the position of the light controlled the jury's verdict. Plaintiff contended that defendant Smith simply ran the red light. Had Smith been a plaintiff, his failure to look in either direction would have convicted him of contributory negligence as a matter of law. I do not mean to infer that his failure to look might not also have created liability against him in this case. It is believed, however, that the jury was correctly instructed on the point. It was carefully pointed out that violation of the duty of care at an intersection may be found to be negligence by a jury. It was further pointed out that failure to abide by the various traffic regulations as set forth in the Motor Vehicle Code amounted to negligence per se, but such violations do not create liability unless they were the proximate cause of the accident.
The facts in this case will illustrate how important a part proximate cause plays in fixing liability. As plaintiff was a passenger in the truck, the case might have been presented on the theory that both drivers were negligent which of course would make defendant liable to plaintiff who was a guest passenger. However, plaintiff did not rely on any such theory as to liability but directed his evidence to the proposition that the light was green for the truck and red for Smith. But the jury, under all the evidence, it seemed to the Court, might very well have found and no doubt did find, that the light for the truck was red and that the running of the red light by the truck driver was the proximate cause of the accident regardless of whether or not Smith failed to look to his right or left before entering the intersection on a green light.
The jury may also have found that defendant's view was obstructed by a bank of earth and foliage to his right and, therefore, he would have been unable to see the truck regardless of whether he looked to the right or left. Thus the jury may have determined that the defendant's failure to look both ways as he entered the intersection was not the proximate cause of the collision.
Counsel for the plaintiff has submitted several cases, among them Girard Trust Corn Exchange Bank v. Philadelphia Transportation Company, 410 Pa. 530, 190 A.2d 293, 1963; Ratcliff v. Myers, 382 Pa. 196, 113 A.2d 558, 1955; Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382, 1954; and Jaski v. West Park Daily Cleaners & Dyers, Inc., 334 Pa. 12, 5 A.2d 105, 1939, which he says require a new trial because as trial judge I denied the request made at the end of the charge. It is believed that this position is not supported by the Pennsylvania appellate decisions. In the first place, whether Smith looked or not was a subjective matter. No one else testified on that subject. It is axiomatic that oral testimony is for the jury to reconcile. Chief Justice Bell in Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150, 154, 1955, held as follows:
'Moreover, it is important to remember that neither a jury nor a judge who sees and hears the witnesses have to believe everything or indeed anything that a plaintiff (or a defendant) or his doctor, or his other witnesses say, even though their testimony is uncontradicted.'
Keeping in mind that the principle of proximate cause is legally as important as the principle of negligence, the situation is one in which the whole issue was one for the resolution of the jury. Under all the evidence presented in this case the additional point presented was incorrect. It would have permitted the jury to find liability based on negligence only.
Therefore, the motion for new trial is refused.
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