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HITZ ET AL. v. STOUFFER (12/16/65)

decided: December 16, 1965.

HITZ ET AL., APPELLANTS,
v.
STOUFFER



Appeals from judgments of Court of Common Pleas of Lebanon County, Sept. T., 1963, Nos. 76 and 409, in cases of Marlin H. Hitz et ux. v. Jean M. Stouffer; and Clair J. Stouffer et ux. v. Paul E. Hershey, individually and trading as Hershey Brothers Garage, and James W. Pearson. Judgment in favor of Stouffers reversed and judgment n.o.v. entered in favor of Hershey and Pearson.

COUNSEL

Stanley W. Katz, with him Bernerd A. Buzgon, and Davis & Katz, for appellants.

H. Rank Bickel, Jr., for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Ervin, P. J. Dissenting Opinion by Watkins, J.

Author: Ervin

[ 207 Pa. Super. Page 57]

We have for consideration two separate trespass cases which were consolidated for trial. In the first case Marlin H. Hitz and Dolores K. Hitz instituted an action against Jean M. Stouffer for the recovery of property damages to the Hitz car. In the second case, Clair J. Stouffer and Jean M. Stouffer instituted an action against Paul E. Hershey, individually and trading as Hershey Brothers Garage, and James W. Pearson, for the recovery of property damages to the Stouffer car.

On the afternoon of June 27, 1961, a clear, dry day, Jean Stouffer was operating an automobile, owned by her husband and herself, in an eastwardly direction on East Birch Street, at or about its intersection with South Green Street, in Palmyra, Lebanon County, Pennsylvania. At the same time the automobile owned by Marlin H. Hitz and Dolores K. Hitz was being operated by a bailee, James W. Pearson, an employe of Paul E. Hershey, in a northwardly direction on South Green Street at or about the aforesaid intersection. The intersection was not controlled by any traffic signs or signals and the visibility for the operators of both vehicles was good. Both streets are forty feet wide. The Hitz vehicle was approaching the intersection from Mrs. Stouffer's right.

Mrs. Stouffer testified as follows on direct examination: "Q. I interrupted you. Then what happened? What did you do and what did you observe and what happened? A. As I proceeded toward the intersection I looked to see if there was any traffic on South Green Street and when I looked I saw that there was a car approaching from the south going north on Green Street. I would say at the time that I saw the car he was about half the distance between Birch and Elm Street. Q. Can you estimate what the distance was? How far away was he from the intersection, if you can

[ 207 Pa. Super. Page 58]

    estimate? A. I would say at least 250 feet. Q. All right, now go ahead. A. As I said, I saw the car to my right and, as I said, he was at least 250 feet away. And so I proceeded into the intersection on my way across. Q. How fast were you driving? Can you fix your speed in any way from the time you got to the driveway until the time you entered the intersection? If it varied, give the varying speeds at which you drove. A. I don't believe it varied and I believe I was driving about fifteen miles an hour. Q. Will you state whether or not you were able to observe his speed when you saw him? A. No, I was not able to observe his speed. Q. What happened then with respect to the collision between the two cars? A. As I was about three quarters of the way through the intersection I heard the screech of brakes and I saw the car just as he was off the right side of my car just before impact. . . . Q. How far were you from the west curbline of Green Street when you observed this car at the distance at which you testified? A. I would say about twenty to twenty-five feet. Q. Do you know whether the intersection was controlled, as we use the term? A. The intersection was not controlled." On cross-examination Mrs. Stouffer testified as follows: "Q. When you were twenty to twenty-five feet from the intersection did you look again to observe Mr. Pearson? A. No. He was entirely too far away." She further testified: "Q. If you saw Mr. Pearson when you were twenty to twenty-five feet away from the intersection, as you now say, when did you next see him, if you did? A. The next time I saw him was just before impact. Q. So as you entered the intersection itself you didn't look to your right to see if Mr. Pearson was coming; is that right? A. No. I had discarded him from my realm of danger at that point."

After the trial the jury found in favor of Jean M. Stouffer in the first case and in favor of Clair J.

[ 207 Pa. Super. Page 59]

Stouffer and Jean M. Stouffer in the second case in the amount of $591.11. Motions for judgment n.o.v. and for new trials were filed in both cases and were denied. Judgments were ...


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