Appeal from order of Court of Common Pleas of Allegheny County, July T., 1959, No. 3620, in case of John J. Heffernan v. Ernest Rosser.
Thomas J. Reinstadtler, Jr., with him Reed, Egler, McGregor & Reinstadtler, for appellant.
Gilbert E. Morcroft, for appellee.
Bell, C. J., Musmanno, Jones, Eagen and O'Brien, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno and Mr. Justice O'Brien dissent.
This appeal lies from an order of the Court of Common Pleas of Allegheny County which granted a new trial in a trespass action wherein the jury had found a verdict in favor of the defendant.
This litigation arose out of an automobile accident which occurred on January 6, 1958, at approximately
p.m., on Route 22 near the Holiday House Motel in Monroeville, Allegheny County. Involved in this accident were two motor vehicles, one owned and operated by John J. Heffernan (plaintiff), and the other owned and operated by Ernest Rosser (defendant).
At the point of accident, Route 22 is a wide -- 62 feet -- highway, running in a general east-west direction and consisting of four lanes -- two eastbound and two westbound -- divided by a so-called "singing divider" elevated about three-quarters of an inch above the highway surface. The Holiday House Motel is situated along the northerly side of the highway; ingress to and egress from the motel to and from Route 22 are by means of three driveways, an eastern, a middle and a western, the latter two being 102 feet apart. At the time of accident, the highway was dry, weather clear, visibility good and, although it was nighttime, the area was well illuminated.
Plaintiff, for business reasons, had been at the Holiday House Motel. Intending to proceed in an easterly direction after leaving the motel, plaintiff drove his automobile to the edge of the berm on the northerly side of the highway. According to plaintiff's testimony, he utilized the western driveway as the means of exit, he waited at the edge of the highway for five to ten minutes for an opportunity to enter the highway, he observed no cars approaching from the east in the westbound lanes but did see cars approaching from the west in the eastbound lanes, the nearest of which cars was in the "outside" eastbound lane and approximately 700 feet from where he would enter the highway, he then crossed the two westbound lanes and turned into the "inside" eastbound lane*fn1 and he had proceeded in
such lane for approximately 140-150 feet when he was struck in the rear by defendant's motor vehicle proceeding in the same eastbound lane. By reason of the collision, plaintiff's motor vehicle was knocked out of control, it crossed the "outside" eastbound lane and came to rest against a telephone pole -- situated about 65 feet from the point of impact -- on the southerly side of the ...