Appeal from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1966, No. 580, in case of Joseph A. Helfrich v. James Brown.
John R. Walters, Jr., with him Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellant.
J. Tomlinson Fort, with him Reed, Smith, Shaw & McClay, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.
[ 213 Pa. Super. Page 464]
In this negligence case involving two motor vehicles at an intersection, the jury returned a verdict for the plaintiff. Defendant moved for judgment n.o.v. and for a new trial, both motions were denied by the court en banc, and judgment was entered on the verdict. The defendant-appellant argues that he is entitled to judgment n.o.v. because the plaintiff failed to prove that he was negligent and because the plaintiff was contributorily negligent as a matter of law. Defendant's request for a new trial is addressed to alleged errors in the judge's charge.
In considering a motion by the defendant for judgment n.o.v. the court must read the testimony in the light most favorable to the plaintiff. Gillingham v. Patz, 429 Pa. 308, 239 A.2d 287 (1968); Gardner v. Maley, 207 Pa. Superior Ct. 109, 215 A.2d 285 (1965). We have viewed the evidence in that light and find the following to be the facts of the case.
[ 213 Pa. Super. Page 465]
The collision occurred at the intersection of Route 8 and Elfinwild Road in Allegheny County on September 16, 1964, at 5:30 p.m. The day was clear and dry and it was daylight when the accident occurred. The plaintiff and defendant were the drivers of the two automobiles involved. They had no passengers and were the only eyewitnesses to the accident who testified. No conflicts appear in the plaintiff's testimony, none of which is contested by the defendant, and we accept it as true.
Route 8 is a four lane 45 foot wide through highway running north and south. It is intersected by Elfinwild Road, a two lane 20 foot wide highway. Immediately before the collision plaintiff was proceeding east on Elfinwild Road and defendant was going south on Route 8. Two tracks of the Baltimore and Ohio Railroad cross Elfinwild Road ten to thirteen feet west of Route 8. The highway stop sign on Elfinwild Road is at the western edge of the railroad tracks. Plaintiff stopped at the stop sign, looked up and down Route 8, and then proceeded across the railroad tracks and stopped again at the entrance to Route 8 as he was required to do. See MacDougall v. Chalmers, 192 Pa. Superior Ct. 401, 162 A.2d 51 (1960). While stopped at the edge of Route 8 he saw two cars approaching from the north in the outside or westernmost lane of Route 8 with their turn signals on, indicating that they intended to turn right into Elfinwild Road. When he looked to the south he saw an automobile heading north in the inside lane of the northbound traffic with its signal on indicating that it intended to turn left into Elfinwild Road. The driver of the latter car motioned to the plaintiff to proceed across Route 8.*fn1 Before
[ 213 Pa. Super. Page 466]
starting the plaintiff again looked to the north, and not seeing any other automobile, he proceeded across Route 8 without again looking to the north. Plaintiff was struck in the easternmost lane of the southbound lanes on Route 8 by the defendant, who was traveling south and had just passed the two automobiles first noticed by the plaintiff.
When the plaintiff stopped at the edge of the highway his vision was partly obstructed by the two vehicles moving south in the outside lane of Route 8. He stated that he could see 150 feet north on Route 8 and could not see defendant. Plaintiff further testified that if the vehicles coming south had turned into Elfinwild Road and cleared the intersection, he would have been able to see 500 feet to the north. The two vehicles coming south were still moving when the plaintiff crossed Route 8. He said that the first southbound vehicle was about 75 feet from the intersection when he started to cross and that his range of vision had been reduced by the approach of that automobile while he waited at the edge of the road. The second time that he looked to the north before starting across the highway he could see at least 100 feet to the north. Plaintiff admitted that had he continued to look northward as he was crossing ...