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GERISCH v. MCELHONE (11/17/66)

decided: November 17, 1966.


Appeal from judgment of Court of Common Pleas of Delaware County, No. 8519 of 1964, in case of Ralph A. Gerisch v. Joseph L. McElhone.


Alexander A. DiSanti, with him Richard, Brian & DiSanti, for appellant.

Ernest L. Green, Jr., with him Butler, Beatty, Greer & Johnson, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Dissenting Opinion by Ervin, P. J. Watkins, J., joins in this dissent.

Author: Montgomery

[ 209 Pa. Super. Page 80]

This appeal arises from an action of trespass for damages resulting from a collision between two automobiles in a parking lot of a large shopping center. The jury returned a verdict for the plaintiff-appellant but the lower court entered judgment n.o.v. for the defendant-appellee because of plaintiff's contributory negligence. On review in such cases the testimony must be read in the light most advantageous to plaintiff, all conflicts therein being resolved in his favor, and he must be given the benefit of every fact, and inference of fact, pertinent to the issues involved which may reasonably be deduced from the evidence. Moyer v. Pittsburgh, Mars & Butler Railway, 275 Pa. 363, 119 A. 469

[ 209 Pa. Super. Page 81]

(1923). Furthermore, it is only in a clear case where the evidence is such that reasonably minded men can unite in the conclusion that a victim of an accident was negligent that a court is justified in declaring him negligent as a matter of law. Armstrong v. Reading Street Railway Company, 171 Pa. Superior Ct. 65, 90 A.2d 277 (1952).

The evidence in this case is limited to that offered by the plaintiff, the defendant not testifying or offering any evidence. Following the principles previously enumerated the facts are as follows.

On April 3, 1964, at 4:00 p.m., plaintiff Ralph A. Gerisch was operating a 1963 Dodge Sedan automobile in a westerly direction on the Lawrence Park Shopping Center parking area. The weather conditions were poor. The sky was overcast and it was raining at the time. At the same time defendant Joseph L. McElhone was operating his stepfather's 1964 Chevrolet automobile in an easterly direction in the same parking area. Leading into the parking area from Parkway (a public road) is an entranceway described as 50 feet wide and 250 feet long with a curbing at the westerly end of same. This entrance had a yellow line running east and west dividing it. Plaintiff entered from Parkway and traveled west along the entrance to a few feet north of said dividing line. After traveling the length of the entrance (250 feet) and a car length more, where cars from the parking lot approach the entrance from all angles, plaintiff turned on his left turn signal intending to make a left turn. At this time he looked ahead and saw no cars close to him, except one moving slowly near the theatre about 370 feet away. He then proceeded to his left and had reached a point where the front of his automobile was about even with the south curb of the entrance when his attention was directed by the screech of tires to defendant's car approaching from his right. Plaintiff applied his brakes and stopped

[ 209 Pa. Super. Page 82]

    immediately but was struck by the front of defendant's car on his right front fender, the impact moving him five or six feet to his left. Plaintiff did not see defendant's car approaching long enough to determine its speed. However, Mrs. Jennings, a disinterested witness who was driving her car across the parking area toward the entrance (exit for her), which was the car plaintiff had observed when he made the turn to his left, testified that she was moving at 15 miles per hour when she saw plaintiff preparing to make a left turn from the entrance. She stated that when he crossed her lane he was struck by the car of defendant which had come from behind her, passed her on the left in the face of incoming traffic at 40 miles per hour, then proceeded to cross in front of her to precede her to the exit.

The lower court declared plaintiff guilty of contributory negligence as a matter of law because of his admission that he had an unobstructed view ahead of him for 600 feet as he proceeded up the driveway, and that he did not see the defendant until shortly before the impact. However, we think the lower court erred when it said that the defendant's vehicle was in plain view for that distance. There is undisputed testimony that the distance from the curbing at the inner terminus of the entrance to the front of the theatre was 370 feet; and Mrs. Jennings testified that after rounding that corner of the theatre she was driving at 15 miles per hour toward the entrance when the defendant came from behind her, passed her at 40 miles per hour, then cut in front of her and struck the plaintiff. Whether the defendant was following her as she rounded the corner or caught up with her after she did so is ...

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