decided: December 6, 1968.
Appeal from judgment of County Court of Allegheny County, No. 1106 of 1967, in case of Jack Stoner, administrator of estate of Hazel Stoner, deceased, v. Robert Bennett, III.
Herbert B. Lebovitz, with him Lebovitz & Lebovitz, for appellant.
Cosmos J. Reale, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Montgomery, J. Hoffman, J., joins in this dissenting opinion.
Author: Per Curiam
[ 213 Pa. Super. Page 461]
Dissenting Opinion by Montgomery, J.:
Clearly there was evidence from which the jury in this case could charge the appellee-defendant with negligence on the basis that he entered this intersection after Stoner had been committed to it, and ran into the right side of the Stoner car with such force that it was propelled 75 feet from the point of impact. It was for the jury to determine which motorist entered the intersection first and thereby acquired the right of way under Section 1013 of The Vehicle Code of April 29, 1959, as amended, 75 P.S. 1013. Pugh v. Ludwig, 409 Pa. 517, 186 A.2d 911 (1963).
Likewise it was for the jury to determine the contributing negligence of Stoner, who was traveling on the Parkway West, a divided thoroughfare, when the appellee entered this "T" intersection from his right on a two-lane road.
[ 213 Pa. Super. Page 462]
I would reverse the order of the lower court entering judgment n.o.v. for the appellee and enter judgment for the appellant on the verdict rendered in his favor.
I respectfully dissent.
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