Appeal from order of Court of Common Pleas of York County, Aug. T., 1969, No. 45, in case of Judy Ann Kern, a minor, by her guardian and next friend, Patsy E. Kern v. Mrs. Dennis Arnold and Dennis Arnold, her husband.
William B. Anstine, Jr., with him Anstine & Anstine, for appellant.
Robert M. Strickler, with him Markowitz, Kagen & Griffith, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J.
[ 218 Pa. Super. Page 144]
Dissenting Opinion by Montgomery, J.:
I respectfully dissent from the order affirming the lower court's refusal to grant a new trial to the plaintiff-appellant in this automobile accident case for the reason that I believe that the lower court committed fundamental error in submitting the question of the plaintiff's contributory negligence to the jury, which returned a verdict for the defendant-appellee.
It is my opinion that there is no evidence in the record upon which an inference of contributory negligence could be based in this case. This accident happened at about 6:40 a.m. on November 8, 1968, on Route 216, a two-lane paved highway, two miles north of Glen Rock, York County, Pennsylvania. Judy Ann Kern, plaintiff, operating a gray 1965 Volkswagen, was traveling east; she was driving between 35 and 40 miles per hour in a 55 mile speed zone. Mrs. Dennis Arnold, the defendant, was operating a Chevrolet station wagon southwardly on a private road which intersected Route 216. The impact occurred entirely within the eastbound lane of travel on Route 216. There was a dispute in the testimony about whether the Volkswagen's headlights were on. Mrs. Arnold testified that the Volkswagen's headlights were not illuminated at the time of the accident and that her Chevrolet's lights were turned on. Although she testified that headlights were required at that hour in the morning, there was insufficient evidence in the record to support that conclusion. There was testimony that the weather was hazy and it was drizzling and the pavement was wet, but there was no evidence presented to show the extent of visibility under these conditions. In fact, any other necessity for headlights was negated by Mrs. Arnold's
[ 218 Pa. Super. Page 145]
own testimony on direct examination as follows: "Q. You indicated that when you got to Route 216, you did look to your left and to your right, you waited, then you looked to your right, you couldn't see anything. How far could you see onto Route 216? A. There's a curve up the road but you can see clear up to that curve." Mrs. Arnold was clearly referring to the curve in the road from which Miss Kern's car had to come. Her failure to see the Volkswagen remains unexplained in this record. However, it is my opinion that the record will not support the inference that her failure to see the ...