Appeal from judgment of Court of Common Pleas of Erie County, No. 1715-A-1969, in re Gary Hoover v. Alice Sackett v. Herbert Higby.
Edward P. Wittmann, with him Evans, Johnson, Scarpitti, Bernard, McCullough & Wittmann, for appellant.
Richard A. Levick, with him Knox, Graham, Pearson, McLaughlin and Sennett, Inc., for appellee.
Herbert Higby, additional defendant, in propria persona, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.
[ 221 Pa. Super. Page 448]
Plaintiff Gary Hoover brought suit in trespass against Alice Sackett to recover $10,150.50 for damages to his truck as the result of an accident occurring on September 19, 1968, at the intersection of Buffalo Road and Water Street in the Borough of Wesleyville, Erie County. Buffalo Road runs in a general east to west direction and Water Street in a north to south direction. Sackett joined Herbert Higby as the additional defendant who was unrepresented by counsel at all times and against whom a default judgment was taken.
[ 221 Pa. Super. Page 449]
In a jury trial, after plaintiff's case was completed, the lower court entered a compulsory non-suit against plaintiff Hoover in favor of the original defendant, Alice Sackett, and directed a verdict against Higby, additional defendant, in the amount of $10,150.50. The lower court refused plaintiff's motion for a new trial and refused to remove the compulsory non-suit, and judgment was entered on the verdict. Thus this appeal.
Taking the facts of this case and inferences reasonably drawn from those facts in the light most favorable to plaintiff as we must (Michigan Bank v. Steesen, 211 Pa. Superior Ct. 405 (1967)), the evidence shows that on September 19, 1968, Alice Sackett, original defendant, (Sackett) was driving her automobile in a northerly direction on Water Street as she approached the intersection of Water Street and Buffalo Road. Herbert Higby, additional defendant, (Higby) was traveling in an easterly direction on Buffalo Road. Both drivers claimed they had a green light when they collided in the intersection. After impact, Higby's car continued through the intersection striking several cars parked on Buffalo Road and continued easterly on Buffalo Road for a distance of 155 feet, striking plaintiff's truck. Sackett said she had stopped for a red light at the intersection and when the light turned green for her she proceeded into the intersection, looking east and west, and did not see Higby until his car was in front of her car and the collision occurred. Higby testified that when he was twelve feet from the intersection he saw the traffic light was green in his favor. At that time he said he had a feeling that he was going to "pass out" and decided to look for a place to park on Buffalo Road in the event he did pass out. There was no place to park west of the intersection, so his intention was to cross the intersection in the hope of finding a parking space east of the intersection.
[ 221 Pa. Super. Page 450]
When he saw the green light in his favor, he continued into the intersection where the collision occurred. As a result of the impact he has no recollection of the collision or the events precipitating that collision. He cannot recall striking several automobiles or striking plaintiff's truck 155 feet from the intersection.
On these facts the lower court granted a motion for compulsory non-suit against plaintiff in favor of Sackett, the court stating: "I don't even think there is evidence that she was negligent and if she was negligent, it certainly wasn't the proximate cause ...