Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1961, No. 4373, in case of Ralph Rogers v. Dwight Moody, Howard MacMillan and Robert MacMillan.
William B. Freilich, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellant.
David N. Rosen, with him Rosen, Sherwin, and Seltzer, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice Cohen and Mr. Justice Roberts concur in the result.
On May 20, 1961, Ralph Rogers, 20 years of age, was seriously injured when the automobile in which he
was riding and which was being driven by Robert MacMillan, came into collision with an automobile being operated by Dwight Moody at the intersection of Hunting Park Avenue and Clarissa Street in Philadelphia. In the ensuing lawsuit, the jury returned a verdict in favor of Ralph Rogers in the sum of $65,000, which was reduced by order of the Court, through the process of remittitur, to $40,000.*fn*
The defendant Moody asks for a new trial, contending that the verdict was against the weight of the evidence and that the amount of the verdict, even after the reduction, was excessive. No point will be served in a long discussion of the evidence adduced at the trial. Briefly stated, the accident happened in the following manner.
The MacMillan car stopped for gasoline at a gasoline station at the corner of Hunting Park Avenue and Clarissa Street, and then started out to turn left to enter into Clarissa Street, to proceed in a northwardly direction on that thoroughfare. After momentarily halting so that a taxicab which was blocking MacMillan's way could back up to allow MacMillan passage, MacMillan looked to the left and saw no cars approaching, his view extending some 200 feet; he then looked to the right and saw no northbound traffic coming from this direction. When he looked to the left again the Moody car was headed directly for him on his, Moody's, wrong side of the road. The evidence supports the conclusion that Moody, moving in the line of the Clarissa Street traffic, impatient with waiting for the cars ahead of him to turn right onto Hunting Park Avenue, drove around them. In so doing, he was
"bucking traffic," and consequently moved rapidly so as to regain his right side of the highway as quickly as possible. While executing this flanking movement the MacMillan car appeared ahead of him. Moody now was traveling at such a speed that he could not stop instantly and he had nowhere to turn. The inevitable collision followed.
The defendant denies he was traveling at an excessive rate of speed and claims he was not moving in excess of 20 to 25 miles per hour. He maintains that the collision occurred because MacMillan suddenly ...