Appeals from judgment and order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1960, No. 1796, and Court of Common Pleas No. 7 of Philadelphia County, June T., 1960, No. 3576, in case of Horace W. Gillingham v. Walter Patz, The Torrington Company and Donald L. Fox; Donald L. Fox v. Walter Patz and The Torrington Company.
Paul Ribner, with him Lederer and Ribner, for appellant.
James J. McCabe, Jr., with him Duane, Morris & Heckscher, for appellant.
Joseph Head, with him Swartz, Campbell & Detweiler, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief -Justice Bell dissents and would affirm the lower court.
Donald Fox and Horace W. Gillingham instituted these actions to recover compensation for injuries suffered in an automobile collision. The collision involved an automobile operated by Fox in which Gillingham was a passenger and an automobile operated by the defendant Patz while in the employ and on the business of the defendant, The Torrington Company [hereinafter Torrington]. A jury trial resulted in a verdict in favor of Fox in the amount of $9000 and in favor of Gillingham in the amount of $46,900 against both Patz and Torrington. In the Gillingham action Fox was joined as an additional defendant. He was exonerated from liability. Subsequently, the lower court en banc concluded that Fox was guilty of contributory negligence as a matter of law and entered judgment in favor of both defendants in his action notwithstanding the verdict of the jury. In the Gillingham action the court sustained the verdict against Patz and Torrington, but awarded a new trial limited solely to the issue of Fox's negligence as an additional defendant and his consequent liability for contribution to the Gillingham verdict. Fox appealed in both actions.
In considering the merits of a motion for judgment n.o.v., the court must view the evidence, together with all the reasonable inferences therefrom, in the light
most favorable to the verdict winner. Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1965).
Viewing the record in this light, the following pertinent facts appear.
On November 23, 1959, at about 9:30 a.m., Fox, accompanied by Gillingham, was driving his automobile in a northerly direction on the Butler Pike in Montgomery County towards Chalfont, Pennsylvania, where both were to seek employment. The road was wet and it was "extremely foggy." The Butler Pike, which is approximately 25 feet wide, is intersected at a right angle by Welsh Road, which is about 35 feet wide. At this intersection Welsh Road is a through highway and the ...