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BURISH v. DIGON. DIGON V. BURISH (01/12/65)

decided: January 12, 1965.

BURISH, APPELLANT,
v.
DIGON. DIGON V. BURISH, APPELLANT



Appeals from judgments of Court of Common Pleas of Washington County, Nov. T., 1960, No. 119, and May T., 1961, No. 696, in cases of George Burish v. Stella Digon; and Stella Digon v. George Burish.

COUNSEL

Richard DiSalle, for Burish, appellant.

William C. Porter, for appellee.

George K. Hanna, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno joins in this Dissenting Opinion.

Author: Eagen

[ 416 Pa. Page 488]

In the late afternoon, an automobile operated by Stella Digon collided with an automobile operated by George Burish at a rural road intersection. At the time involved, Digon was traveling east on one of the intersecting roads and Burish was traveling south, approaching from Digon's left, on the other. Both drivers were seriously injured. Cross actions for damages were instituted and later consolidated for trial. The jury found in favor of Digon in both actions, and in the one wherein she was plaintiff awarded her substantial damages. Post trial motions were dismissed and from the judgments entered upon the verdict, Burish appeals.

Appellant first contends that Digon was guilty of contributory negligence as a matter of law in that she did not continue to look for approaching traffic as she proceeded through the intersection. That the evidence warranted a conclusion that Burish was negligent is not contested. It justifies a finding that he saw the other vehicle for sufficient time beforehand to bring his car to a stop, or through other reasonable action to avoid the collision.

The intersection involved was not controlled by traffic lights or stop signs at the time of the accident, although, under the evidence, it is clear that the road upon which Burish was traveling was considered a through highway. Both roads were of macadam surface construction and each approximated 20 feet in width.

Digon's testimony discloses that she brought her automobile to a complete stop approximately five feet

[ 416 Pa. Page 489]

    from the intersection; that she then first looked to her left, immediately following to her right, and finally to her left again; that she had an unobstructed view to her left of approximately 150 feet; that seeing no traffic approaching in either direction on the intersecting road, she proceeded slowly in low gear at a speed of ten to fifteen miles an hour across the intersection; that she considered the slow rate of speed necessary because of a depression in the road; that after her automobile traveled approximately twelve feet across the intersecting road, the collision occurred with the left front fender of her vehicle coming into contact with the right side of the Burish automobile; that she did not see the latter vehicle until the moment of collision.

It is beyond argument that a motorist at an intersection is always required to be alert, observe conditions before entering therein, and to continue to look as he proceeds through: Smith v. United News Co., 413 Pa. 243, 196 A.2d 302 (1964). It is equally well established that contributory negligence should not be declared as a matter of law, unless the conclusion ...


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