No. 173 October Term, 1979, Appeal from Judgment entered of the Court of Common Pleas of Delaware County Dated December 19, 1978, No. 518 of the 1973 Trespass.
George J. O'Neill, Philadelphia, for appellant.
Harry J. Bradley, Media, for appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., concurs in the result.
[ 277 Pa. Super. Page 224]
Martha L. Johnson, the appellant, was driving her automobile east on East Eagle Road in Havertown at 12:20 a. m. on July 16, 1971. As she passed Poplar Street she came over the crest of a hill and started down a substantial grade. The speed limit was 35 m. p. h.
As she came over the crest her headlights picked up a vehicle being driven by the appellee, John J. O'Leary, which had backed out of the O'Leary driveway onto East Eagle Road.
[ 277 Pa. Super. Page 225]
A collision took place between the vehicles resulting in personal injury to appellant and property damage to both vehicles.
Johnson sued O'Leary and O'Leary filed a counterclaim against Johnson. The jury denied recovery to either side by finding a verdict for O'Leary in the Johnson suit and a verdict for Johnson in the O'Leary counterclaim. It is assumed the jury found both parties negligent and therefore denied recovery by either.
O'Leary has not appealed but Johnson has, so only the Johnson v. O'Leary case need be considered. From the verdicts the parties have concluded that the sole issue is whether appellant Johnson was contributorily negligent so as to bar her recovery.
There is some conflict in the testimony but for the purposes of considering Motions for Judgment N.O.V. and for a New Trial, we must interpret the evidence most favorably to the verdict winner O'Leary. Lyons v. Andrews, et al., 226 Pa. Super. 351, 313 A.2d 313 (1973).
The evidence of O'Leary was that he lived on the north side of East Eagle Road. When this happened he was driving to work and had stopped at the foot of his driveway and looked to the East and then to the West. Seeing no ...