Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1967, Nos. 4013 and 4014, in case of Irvin Gaev and Louis D. Gaev, administrators of the estate of Irene Gaev v. Carey Joel Mandell, and Joseph Gaev v. Same.
C. Dean Francis, for appellant.
Harvey B. Levin, with him Piwosky, Levin & Gafni, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Opinion by Montgomery, J.
[ 219 Pa. Super. Page 398]
In this action of trespass Joseph Gaev recovered a verdict of $24,181.70 on account of personal injuries to himself and for the death of his wife, Irene Gaev, and the estate of Irene Gaev recovered $11,445.75 on account of her death. Defendant's motions for a new trial and for judgment n.o.v. having been refused and
[ 219 Pa. Super. Page 399]
judgments entered on the verdicts, these appeals by defendant followed.
The accident out of which these claims arose occurred after dark on March 31, 1967, at about 7:50 p.m., on the northerly one half of Stenton Avenue about 150 feet west of Broad Street in the City of Philadelphia. Defendant testified that on this dry, clear evening he had driven his Chevrolet automobile, with headlights burning, north on Broad Street; he made a left turn into Stenton Avenue, which is 60 feet wide and accommodates three lanes of traffic in both directions (two moving and one for parking); after proceeding west on Stenton Avenue at 30 miles per hour on the lane nearest the center line of that street he saw two people walking north about two to three feet from the center line of Stenton Avenue three car lengths, or about 60 feet to 72 feet, in front of his car; and he tried to stop and in doing so skidded his wheels 52 feet, veered over to his right a couple (two) feet and struck such persons in the middle of lanes two and three with the "front right side of the hood" of his car while still traveling at a speed of 10 to 15 miles per hour.
On the basis of this testimony the defendant requested in his point 17 that the court charge the jury as follows:
"17. 'The driver of any vehicle, street car, or trackless trolley omnibus, upon a highway within a business or residence district shall yield the right of way to a pedestrian crossing such highway within a crosswalk, except at intersections where the movement of traffic is being regulated by a police officer or traffic signal. Every pedestrian crossing a highway within a business or residence district, at any point other than a crosswalk, shall yield the right of way to vehicles upon the highway.' The Vehicle Code, 1959 April 29, P. L. 58, § 101, 75 P.S. § 1013(c)." This point was not read as
[ 219 Pa. Super. Page 400]
submitted, the court saying, "No. 17, I covered that to the jury about the crosswalk, that a person crossing not at a crosswalk has a high degree of care and the operator of a motor vehicle has a lesser degree of ...