decided: June 16, 1967.
Appeal from order of Court of Common Pleas of York County, Aug. T., 1965, No. 486, in case of Raymond C. Templin v. Maurita V. Harbold.
J. Edward Pawlick, for appellant.
Robert J. Brown, with him Kain, Brown & Roberts, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.
[ 210 Pa. Super. Page 311]
This is an appeal by plaintiff Raymond Templin from an order of the trial court sustaining a compulsory non-suit.
On the evening of May 5, 1965, plaintiff was driving north on Continental Road in York, Pennsylvania, and defendant was traveling east on Fireside Road. The cars collided in the middle of the intersection of these roads.*fn1 Both vehicles were damaged*fn2 and plaintiff sustained severe injuries. He claimed $1,164.20 in special damages*fn3 plus damages for pain and suffering and defendant counterclaimed for $208.21, the damage to her car.
The trial court concluded plaintiff failed to prove defendant was negligent and found that he was contributorily
[ 210 Pa. Super. Page 312]
negligent as a matter of law.*fn4 We cannot agree.
Plaintiff testified at trial: "I was driving north . . . and I had slowed down because the intersection is blocked, the view to the left is blocked by a hedge and by some trees, evergreen trees. I shifted the car into second gear, I looked to the right, no traffic coming; I nosed the car out into the intersection, because you have to do that in order to get a view, and I saw nothing coming the other way and I started across the street. . . . I was part way across and a boy ran out in the street ahead of me being chased by another boy. I put my foot on the brake and then the world seemed to collapse on me. I didn't know nothing and then I came to later." Plaintiff also presented the following uncontradicted evidence. While traveling 20 miles per hour, he "nosed out into the intersection", looking right and then left. Defendant's car was not in view, although he could see 60 feet to his left. This would indicate plaintiff's car entered the intersection before defendant's or at approximately the same time. Defendant never denied involvement in the accident.
With no traffic controls at the intersection, plaintiff had the right of way under § 1013 of The Vehicle Code which in pertinent part provides: ". . . When two (2) vehicles . . . approach or enter . . . an intersection at approximately the same time, the operator of the vehicle . . . on the left, shall yield the right of way to the vehicle . . . on the right . . . ." April 29, 1959, P. L. 58, § 1013, 75 P.S. § 1013. At the close of the trial on November 15, 1965, the court below considered the question
[ 210 Pa. Super. Page 313]
of defendant's negligence to be "extremely close" and concluded: ". . . we believe that the photographs of the vehicles, as well as the testimony that the collision occurred at some point in the intersection, would warrant the jury in concluding . . . that the plaintiff first entered the intersection and was thereafter struck by defendant's car. If this were so, this would constitute negligence on the part of the defendant." This is difficult to reconcile with the trial court's subsequent opinion of March 14, 1966 which stated there was "no evidence whatsoever" of when the cars entered the intersection and concluded ". . . there was not a scintilla of evidence from which anyone could conclude that defendant did or failed to do anything which constituted lack of due care."
We conclude plaintiff has presented evidence to show he was entitled to the right of way under § 1013 and that defendant was negligent.
In finding plaintiff guilty of contributory negligence, the court below relied on Smith v. United News Company, 413 Pa. 243, 196 A.2d 302 (1964); Papkin v. Helfand and Katz, 346 Pa. 485, 31 A.2d 112 (1943); and McCandless v. Krut, 140 Pa. Superior Ct. 183, 14 A.2d 181 (1940). Those cases require a motorist to observe conditions at the time of entry into an intersection and indicate his duty to observe continues until he is assured of safe clearance. In none of these cases, however, was there any evidence of emergency or distraction and the plaintiffs provided no explanation for their failure to continue looking.
The instant case is similar to Bollinger v. Greenaway, 83 Pa. Superior Ct. 217 (1924), where the plaintiff was also distracted by pedestrians. In Bollinger, the Court concluded: ". . . he [plaintiff] cannot be declared guilty of contributory negligence as a matter of law, because, in watching pedestrians crossing High Street, he failed to continue to look to the west [sic]
[ 210 Pa. Super. Page 314]
for approaching traffic. Whether his actions amounted to negligence under the circumstances was for the jury." (Emphasis added.) In the case at bar, the trial court attempted to distinguish Bollinger by saying: "There, plaintiff actually saw defendant, but failed to continue to watch him because his attention was distracted. Here, plaintiff never saw defendant's car at any time. . . ." However, there is no indication in the Bollinger opinion that the plaintiff ever saw the defendant before the accident.*fn5
Bollinger holds that, in such an emergency situation, the plaintiff is justified in concentrating on the immediate crisis at the risk of not looking a second time for approaching cars, if he has already looked and has seen nothing. At the very least, the plaintiff is not guilty of contributory negligence as a matter of law.
It is clear "a finding of contributory negligence as a matter of law must be supported by a record that inescapably leads to that conclusion; otherwise, the question is one for determination by the jury." Smith v. United News Company, supra at 247. Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962). It is also well settled that a non-suit
[ 210 Pa. Super. Page 315]
should be entered only in clear cases and evidentiary conflicts must be resolved in favor of the plaintiff. Calloway v. Greenawalt, 418 Pa. 349, 211 A.2d 435 (1965); Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963). Under Pennsylvania law, it is not necessary that every fact point unerringly to liability and a case is properly submitted to the jury when a reasonable conclusion can be reached which would place liability on the defendant. Devenney v. North Franklin Township Volunteer Fire Department, Inc., 209 Pa. Superior Ct. 378, 228 A.2d 61 (1967); Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959).
In the case at bar, because of the darting out of the two boys in front of plaintiff, his failure to continue looking left was not contributory negligence as a matter of law. Plaintiff discharged his initial burden of producing evidence and was entitled to a jury determination.
Decision reversed and new trial granted.*fn6