Appeal from order of Court of Common Pleas of Delaware County, No. 7382 of 1964, in case of John Parker v. Amelia Jones.
Ralph B. D'Iorio, with him Cramp and D'Iorio, for appellant.
James C. Brennan, with him Hinkson & Cantlin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents.
This is an appeal from an order of the Court of Common Pleas of Delaware County entered in a trespass action wherein the court granted a new trial to John Parker (Parker) subsequent to a jury verdict in favor of Amelia Jones (Mrs. Jones).
Briefly, the factual background of this litigation is as follows: on March 4, 1964, at approximately 11:45 a.m., Mrs. Jones was operating her automobile in an easterly direction on Route 1 in Concord Township, Delaware County; at the point of accident, Route 1 -- 52 feet wide and running generally east-west -- consists of two westbound and two eastbound lanes -- each lane being 12 feet wide -- separated by a four feet wide medial strip;*fn1 Parker, a pedestrian, was engaged in crossing the highway, at a point between the intersections of Routes 322 and 202 with Route 1, from the northerly to the southerly side of the highway; Parker
had successfully negotiated passage over the two westbound lanes and had crossed over the two eastbound lanes to a point approximately a foot from the southerly edge of the highway when he was struck by Mrs. Jones' automobile then traveling in that eastbound lane nearest the southerly edge of the highway.
Parker instituted a trespass action against Mrs. Jones in the Court of Common Pleas of Delaware County and, after a trial, the jury returned a verdict in favor of Mrs. Jones and against Parker. On Parker's motion, the court below granted a new trial upon three particular grounds: (1) that the trial court should have submitted to the jury the issue of wanton misconduct on Mrs. Jones' part so that the jury could have considered whether Parker was entitled to recover, regardless of any contributory negligence on his part; (2) that the trial court should not have instructed the jury on the duty of a pedestrian crossing a highway between intersections since, under the instant factual situation, Parker was upon the highway a sufficient period of time for Mrs. Jones to have seen him;*fn2 (3) that additional instructions to the jury were given, in the presence of counsel but in the absence of the court reporter. From the order granting a new trial this appeal was taken.
An examination of this record indicates beyond question that Parker was guilty of contributory negligence as a matter of law. As a pedestrian about to cross this heavily trafficked highway, Parker was under a duty not only to look when he reached the medial strip but to continue to look as he crossed the two eastbound lanes. Parker when he reached the medial strip looked to his right or toward the west -- in the direction from which he could anticipate vehicular traffic -- and,
at that point, saw two automobiles*fn3 "a block and a half away" and "figured [he] had a chance to get across"; Parker then stated that he "went on as fast as [he] could run; it may not have been so very fast, but [he ran] as hard as [he] could to get on the outline like that". The testimony further reveals that Parker did not again look to the west until his "heel was on the white mark", the southern edge of the highway: "Q. After you started to run from some point near the center, after you saw the two cars coming from your right, you have told us, have you not, that you never looked to your right again? A. Never looked until just about a half second before this here car hit me, when I made my jump. Q. And how close were you to the edge of the road then when you looked to your right again? A. My heel was on the white mark. . . . Q. What I am asking you is, even though you did not see any other cars coming from your right, was the visibility such that you could see further on down the road behind the two cars that were coming toward you? A. I did not look, I tell you, I did not look. I never looked, not until I got across and put my, this right foot, the left foot I mean, on the white line; and then I looked and here was a car right up on me, and I made my jump and it got me in the right side. Q. When you stood there for that one-half second somewhere near the white line or the center line, ...