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decided: July 12, 1978.


No. 708 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, dated March 28, 1977 denying Plaintiff Appellant's Motions for Judgment Non Obstante Veredicto and for New Trial at No. 1203 October Term, 1974.


William M. Wycoff, Pittsburgh, with him Thorp, Reed & Armstrong, Pittsburgh, for appellant.

Leo Daniels, Pittsburgh, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, Spaeth and Hester, JJ., dissent.

Author: Hoffman

[ 257 Pa. Super. Page 68]

Appellant argues that the trial court erred in submitting the issue of his contributory negligence to the jury. We agree and, therefore, reverse and remand for a new trial.

On July 29, 1974, appellant filed a complaint in trespass against appellee; he sought to recover for injuries sustained during a motor vehicle accident. At a jury trial in Allegheny County Court of Common Pleas, appellant produced the following evidence: on June 14, 1973, at 8 a.m., appellant was traveling on East Ohio Street in the vicinity of the 31st Street Bridge. East Ohio Street is a 4 lane highway with two lanes for eastbound traffic and two lanes for westbound traffic. Appellant was driving a Volkswagen in the left, or passing lane westbound at 35 m.p.h., the posted speed limit. Having successfully overtaken a vehicle in the right lane, appellant looked in his rear view mirror to determine whether the right lane was clear so that he could return to it. He observed appellee's agent, bus driver Raymond Myers, driving a bus in the right, westbound lane approximately 400 feet to the rear. Appellant ascertained that the bus was

[ 257 Pa. Super. Page 69]

    accelerating rapidly and that it would soon overtake him. Thus, appellant continued in the left lane to permit the bus to pass him on the right. Appellant maintained a constant speed so as not to confuse the bus driver. Appellant testified that as the bus was passing his car, it suddenly moved from the right lane into the left lane without giving any warning via turn signal or horn. The left rear of the bus smashed into the right front of appellant's car and propelled it into oncoming, eastbound traffic where another car struck appellant's car head-on. The force of the impact threw appellant out of his vehicle and resulted in injuries to him.

Two bus passengers testified for appellant. The first, Fred Dyer, was standing in the center of the bus at the time of the incident. After the bus crossed the 31st St. Bridge, he noticed the bus rapidly accelerate from 25 m.p.h. to 45-50 m.p.h. as it traveled in the right, westbound lane. Dyer say appellant's Volkswagen in the left lane; the bus began to move past the car then changed into the left lane directly in front of the Volkswagen. Dyer heard a "thud" at the rear of the bus as it struck appellant's car. When the bus did not stop, the passengers called out to the driver that he had been involved in an accident. Some distance down the road, the driver stopped and handed out witness cards. Another bus passenger, Donald Bashline, testified for appellant. Bashline was standing directly behind the driver at the time of the incident. Bashline noticed a rapid increase in the bus' speed up to 50-55 m.p.h.; he observed the bus approach a white car traveling ahead of it in the right lane. The bus was going so fast it would be unable to stop without hitting the car; at the point of no return, the bus swerved into the left lane without giving any turn signal or using the horn. Bashline heard the bus crash into a car.*fn1

In defense, appellee introduced the following testimony. Bus driver Raymond Myers stated that he was traveling in the right lane, westbound at 30-35 m.p.h. on the morning in

[ 257 Pa. Super. Page 70]

    question. After passing the 31st St. Bridge, he decided to change lanes to avoid an area of potholes which he knew existed several hundred feed ahead in the right lane. There was a dark car traveling ahead of him in the right lane but Myers stated that he changed lanes only to bypass the holes in the road, not to avoid the car. Myers did not see the Volkswagen in the left lane; he put on his turn signal and changed lanes. He stated that he did not hear any crash and only became aware of an accident about 50-75 feet after changing lanes. On cross-examination, the driver admitted ...

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