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CARR v. KURTZ (12/19/63)

December 19, 1963

CARR
v.
KURTZ, APPELLANT.



Appeal, No. 268, April T., 1963, from judgment of County Court of Allegheny County, No. 750 of 1962, in case of Joseph H. Carr v. R. C. Kurtz, Sr. Judgment affirmed.

COUNSEL

William Sloan Webber, for appellant.

Eugene F. Scanlon, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 202 Pa. Super. Page 445]

OPINION BY FLOOD, J.

This is an appeal from a judgment for the plaintiff, entered by the court below sitting without a jury and

[ 202 Pa. Super. Page 446]

    affirmed by the court en banc, for property damage of $1294.36 sustained as a result of a collision of automobiles owned and driven by the parties.

The evidence taken most favorably to the plaintiff, the verdict-winner, is that he was driving south on McClure Avenue, a two way street forty feet wide, and stopped in response to a stop sign at its intersection with Benton Avenue, a two way street fifty feet wide. He looked both to his right and left on Benton Avenue. Seeing no traffic coming from either direction, he proceeded into the intersection. He looked again to the right when about halfway across Benton Avenue and for the first time saw the defendant's car approaching from his right at a distance of approximately ten feet. When his car was three-fourths of the way through the intersection it was struck on the right side by the front of the defendant's vehicle. He testified that he did not see the defendant's oncoming automobile because he was unable to see more than thirty feet to the west due to a dip in the street at about that distance.

Since the collision occurred when the plaintiff was three-fourths of the way through the intersection, and the defendant admitted that he entered the intersection without looking to the right or left, the question of the defendant's negligence was for the trier of the facts. The defendant's testimony that he had good side vision and saw right and left is merely one piece of evidence to be considered on the issue of his negligence.

The burden is on the defendant to prove that the plaintiff's own negligence contributed to his injury. Stegmuller v. Davis, 408 Pa. b7, 182 A.2d 745 (1962). His principal evidence of contributory negligence was his own testimony and the testimony of his son that there was not dip which could have prevented the plaintiff from seeing his automobile approaching on Benton Avenue ...


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