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FRANK G. DITZ v. GLORIA MARSHALL (10/20/78)

decided: October 20, 1978.

FRANK G. DITZ, A MINOR BY FRANK E. DITZ AND NANCY B. DITZ, HIS WIFE, PARENTS AND NATURAL GUARDIANS, AND FRANK E. DITZ AND NANCY B. DITZ, IN THEIR OWN RIGHT, APPELLANTS,
v.
GLORIA MARSHALL



No. 138 April Term, 1978, Appeal From the Order Entered July 28, 1977 of the Court of Common Pleas, Civil Action--Law, of Venango County at A.D. No. 143-1974.

COUNSEL

Raymond S. Woodard, Franklin, for appellants.

John R. Gavin, Oil City, for appellee.

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

Author: Cercone

[ 259 Pa. Super. Page 33]

Plaintiff-appellant initiated this action in trespass for damages resulting from injuries to person and property sustained by appellant and his son in a collision with appellee's vehicle. The jury found appellee non-negligent and appellant requested a new trial. The lower court denied the motion. Appellant asks this court to reverse the lower court's decision, arguing that the verdict was against the weight of the evidence. After careful review of the record we rule in appellant's favor and grant a new trial.

The accident giving rise to this appeal occurred on April 20, 1972 where U.S. Route 62 intersects with Route 257 in Cranberry Township, Venango County, Pennsylvania. These two roads form a "Y" type intersection, with Route 62 constituting the stem and northwest branch of the "Y". At the time of the accident, Route 62 was constructed with a general northerly course from Oil City toward the Borough of Tionesta. Route 257 made up the northeast branch of the "Y" intersection.

Approximately 83 feet past the "Y" intersection,*fn1 Routes 62 and 257 were connected by a short two-lane roadway, which served as a turnoff and allowed persons traveling south on Route 62 to turn left and get onto Route 257 going northeast. Appellee was traveling south on Route 62 and it

[ 259 Pa. Super. Page 34]

    was at this short connecting road that appellee attempted to turn left.

The posted speed limit on Route 62 in the vicinity of the accident was 35 miles per hour; neither party was said to have been speeding. The time of the collision was fixed by witnesses as being around 7:30 P.M. It was just becoming dusk but headlights were not needed.

Appellant's car was going north on Route 62 when it collided with appellee's car coming south on Route 62 as appellee tried to turn left across Route 62 onto the turnoff. After the accident an investigation was conducted by Troopers Jack Paterson and Charles Minick. Trooper Paterson testified that Route 62 was basically level at the point of collision. Furthermore, he added that Route 62 ran in a straight course three hundred to four hundred feet north from the point of collision, which would be appellant's view, and also straight two hundred feet to the south, the direction faced by appellee. Regarding the view of a driver traveling south on Route 62 approaching the accident area Trooper Paterson explained that Route 62 curves rather sharply to the right.

Appellant testified that he was coming around the curve heading north on Route 62 when he first observed appellee's auto. Appellant estimated that he first saw appellee's car when appellee was approximately 250 feet north of the site of the collision and when his vehicle was 250 feet south. Appellee testified that she never saw appellant's vehicle until the moment of collision. A building located on the southwesterly side of Route 62 and in the area of the ...


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