Appeal from the Order Entered June 23, 1976, by the Court of Common Pleas, Civil Action, Law, of Columbia County at No. 108 October Term, 1973. No. 2179 October Term, 1976.
Gailey C. Keller, Bloomsburg, for appellant.
David C. Dickson, Jr., Berwick, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 246 Pa. Super. Page 514]
Appellant contends that the lower court erred when it instructed the jury that she could be contributorily negligent
[ 246 Pa. Super. Page 515]
for choosing one of two possible routes from home to work. We agree and, therefore, vacate the judgment and grant a new trial.
The events leading to the instant suit occurred on February 22, 1973, at approximately 8:00 a. m., in Bloomsburg, Columbia County. At trial*fn1 on June 3, 1974, appellant-plaintiff testified that she was driving her 1972 Chrysler sedan out her driveway onto North Iron Street. She looked both ways for approaching cars, saw no traffic in either direction, and crossed one lane of traffic and turned left. After traveling north on Iron Street approximately 55 feet, her car was struck in the rear by appellee's automobile. She did not see appellee-defendant before the accident, but did hear brakes screeching. She lost consciousness briefly after her car was struck; the next thing she recalled was hearing appellee say: "My God, I didn't mean to hurt anybody. I was going thirty miles an hour, and you pulled out in front of me." Appellant instructed appellee to turn off her ignition, so she could remove her foot from the brake pedal. Appellant testified that she suffered severe injuries to her neck and back as a result of the collision, as well as $791.09 in damages to her automobile.
On cross-examination, appellant admitted that her vision to the right as she exits her driveway is obstructed because the hill crests about 200 feet away, and that motorists approaching from that direction cannot see her car as it exists the driveway until they reach the crest of the hill. She denied that she stopped before entering appellee's traffic lane on Iron Street because of a car approaching from the left and denied that a car was forced to swerve into appellee's lane of traffic to avoid hitting her. Appellant admitted that she could turn right, rather than left, and thereby use an alternate route to her place of employment. However, she used the alternate
[ 246 Pa. Super. Page 516]
route only in icy weather to avoid driving up a hill close to her place of work because the alternate route required a few extra minutes of driving.
Appellant called Bloomsburg Police Sergeant Albert Battisti, who arrived at the scene of the accident shortly after the collision. He testified to the following facts: the weather was clear and dry, the posted speed on Iron Street was 35 miles per hour, Iron Street had been cindered recently, which could cause severe skidding. He stated that the point of impact was 55 feet north of appellant's driveway in appellee's lane of travel and that appellant's car came to rest 35 feet north of the point of impact. Appellee's car started skidding sideways for approximately 40 feet before its right front corner struck the rear of appellant's car. Sergeant Battisti also testified that appellee could not possibly see appellant's car until it was 200-250 feet from the driveway because his vision would be obstructed by ...