Appeals from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1967, No. 1059, July T., 1965, Nos. 3189 and 4011, in cases of Charles E. Walker et al. v. Reed F. Martin; William J. Henry v. Same; and Reed F. Martin v. William J. Henry.
Thomas F. Weis and John C. Soich, with him Weis & Weis and Stokes, Lurie & Tracy, for appellant.
John M. Feeney and Wilbur McCoy Otto, with them Frank C. Rayburn, and Harrington, Feeney & Schweers, and Dickie, McCamey & Chilcote, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
[ 214 Pa. Super. Page 289]
These trespass actions arise out of a collision between motor vehicles driven by William J. Henry and Reed F. Martin on March 20, 1965, about 8:30 p.m. on Verona Road, Penn Hills Township, Allegheny County, Pennsylvania. Each driver sued the other and Walker Pontiac, Inc., the owner of the car driven by Henry, sued Martin. After a consolidated trial verdicts were rendered in favor of Henry and Walker Pontiac and against Martin. Martin's motions for new trial were denied and he appeals from judgments entered on the verdicts.
[ 214 Pa. Super. Page 290]
At the scene of the collision Verona Road was a two lane highway running approximately north and south. A yellow line indicated the center of the road. It was dark and both drivers had their headlights turned on. Henry was traveling north and Martin was traveling south. The two vehicles met in a head-on collision. According to Henry's testimony the collision occurred 25 to 30 feet south of a curve to Henry's left when Martin came around the curve with his high beam lights on and struck Henry's car in the northbound lane. On the other hand Martin testified that Henry was coming north in the southbound lane and hit him. Each driver testified that he was operating his vehicle on his own side of the road. A witness in a car following Henry testified that Martin was in the wrong lane and hit Henry "a couple hundred" feet south of the curve. Another witness following Martin did not see the collision, but testified that he observed dirt and glass in the southbound lane just inside the center line.
The trial judge made no mention of contributory negligence in his charge. Martin's counsel specifically excepted to this omission, but the judge ruled that a charge on contributory negligence was not necessary.
During their deliberation the jurors submitted the following question to the court: "Can we find them both at fault?" The judge told the jury that they could not find both at fault but must find that one or the other was negligent and bring in a verdict against him.
In his motion for a new trial Martin alleged that the court erred in refusing to charge on contributory negligence and in refusing to permit the jury to find negligence on the part of both drivers. The lower court was of the opinion that there was no evidence to justify a charge on contributory negligence. While conceding that a jury can disbelieve testimony, the court
[ 214 Pa. Super. Page 291]
held that the jury cannot fill the void left by such discarded ...