Appeal from order of County Court of Philadelphia, Sept. T., 1961, No. 4700-E, in case of Gus Franchetti v. Harold L. Johnson et al.
Nathan Berlant, for appellant.
William B. Freilich, with him James J. Marsh, and LaBrum and Doak, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.
[ 215 Pa. Super. Page 15]
This is an action in trespass brought by Gus Franchetti, plaintiff-appellant, to recover damages for personal injuries which he allegedly sustained on March
[ 215 Pa. Super. Page 1623]
, 1961, when his automobile was struck by a tractor-trailer owned by the defendant-appellees, Gilbert A. Ogden and Ogden Trucking Company, and operated by defendant-appellee, Harold L. Johnson. In a trial on September 11, 1967 before Honorable Felix Piekarski and a jury, a verdict was returned in favor of the defendants. Following the lower court's refusal of a motion for a new trial and the entry of judgment for the defendants, the plaintiff appealed.
Johnson had been operating the tractor-trailer south on Island Avenue in the City of Philadelphia in the lane nearest the west curb of that street. He had been behind or alongside a streetcar, which, at the intersection of Island Avenue and Eastwick Avenue, made a right turn. Johnson had intended to continue traveling south on Island Avenue; but, having failed to anticipate the right turn of the streetcar, he also had to make a right turn into Eastwick Avenue to avoid striking the streetcar. In doing so, he struck Franchetti's car, which was stopped just beyond the intersection and near the curb. At the time of the accident, 4:45 p.m., the streets were wet, for it had been raining and was still drizzling. Those facts are not in dispute. However, one of the witnesses for the appellees offered testimony that Franchetti was not in his automobile at the time of the accident and Johnson testified that Franchetti's car was "sticking out" about three or four feet into Island Avenue. Franchetti had testified that at the time of the accident he was operating his car but it was stopped with its back at least twenty feet from the corner of Island Avenue. He stated that he had backed it from a parked position for the purpose of pulling out and avoiding another car parked ahead of it, which movement was prevented by the turning streetcar.
Since, by failing to have his truck under proper control and attempting to pass a streetcar at an intersection,
[ 215 Pa. Super. Page 17]
Johnson's negligence seems to be unquestionable, the jury's verdict for defendants could have been predicated on their belief that Franchetti's car was illegally parked at the time of the accident. This issue was submitted to the jury. Franchetti's objection to the submission of the issue of contributory negligence to the jury is preserved by the court's refusal of the following point for charge: "2. The Court is requested to charge that there is no evidence of contributory negligence in this case; this fact cannot be determined by the jury, and if they find that the defendant was negligent and that such negligence was a proximate cause of the plaintiff's injuries and damages, then the jury must return a verdict for the plaintiff."
Not only does Franchetti complain of the submission of the question of contributory negligence to the jury but contends that, even if it was a proper subject for the jury's consideration, the court erred in placing the burden of disproving contributory negligence on him ...