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MARY JANE HERMAN v. ESTHER MARTIN HORST (04/28/78)

decided: April 28, 1978.

MARY JANE HERMAN, ADMRX. OF THE ESTATE OF WILLIAM R. HERMAN, DECEASED, APPELLANT,
v.
ESTHER MARTIN HORST



COUNSEL

David H. Roland, Reading, with him Balmer, Mogel, Speidel & Roland, Reading, for appellant.

Jay N. Abramowitch, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 255 Pa. Super. Page 234]

This is an appeal from an order refusing to take off a non-suit.

A non-suit is proper

     only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Watkins v. Sharon Aerie, No. 327 F.O.E., 423 Pa. 396, 223 A.2d 742 (1966).

Ford v. Jeffries, 474 Pa. 588, 591, 379 A.2d 111, 112 (1977).

Viewed in this light, appellant's evidence was to the following effect. On October 9, 1973, appellant's decedent, William Herman, was driving a Volkswagen stationwagon in the right hand lane in a west-bound direction on Route 422, approximately two miles west of Womelsdorf, in Berks County. In this area Route 422 is a three lane highway, with two lanes marked for west-bound traffic and one for east-bound; the speed limit is 55 m. p. h. Appellee, Esther Horst, was also driving her car in the right hand west-bound lane, at an undetermined distance directly in front of Mr. Herman's car. In the vicinity of a road that intersects Route 422 and leads towards Myerstown, Mr. Herman started turning his car into the center west-bound lane. Appellee, who was looking for signs indicating the turn-off to Myerstown, also started turning her car into the center lane, moving into the path of Mr. Herman's car. She did this without first checking her mirrors and without signaling. In avoiding her, Mr. Horst lost control of his car, swerving first into the east-bound lane, then back into the center, west-bound lane, and finally back into the east-bound lane,

[ 255 Pa. Super. Page 235]

    where he struck a van on the southern shoulder of the road. As a result his car was spun around, and he was thrown out and killed.

The lower court acknowledged that on this evidence appellee could be found to have been negligent. See The Vehicle Code, Act of Apr. 29, 1959, P.L. 58, § 1012, as amended, Sept. 16, 1961, P.L. 1373, § 4, 75 P.S. 1012(a),*fn1 which requires that a driver give a visible signal 100 feet in advance of and during a turning movement or lane change. The court held, however, that appellee's negligence was not the proximate cause of the accident.

In Ford v. Jeffries, supra, 474 Pa. at 594, 379 A.2d at 114, the Supreme Court discussed the ...


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