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MAMIE FARLEY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND RICHARD HARROW (08/01/80)

filed: August 1, 1980.

MAMIE FARLEY
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND RICHARD HARROW, JR. APPEAL OF SEPTA. RICHARD HARROW, JR. V. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND HENRY T. PLONSKI, APPELLANTS



No. 1650 October Term, 1978, No. 1651 October Term, 1978, Appeal from the Judgment Entered on May 25, 1978 in the Court of Common Pleas of Philadelphia County, Trial Division Law, September Term, 1971, No. 2889 and May Term, 1973, No. 1900.

COUNSEL

Norman M. Hegge, Jr., Philadelphia, for appellants.

Richard W. Berlinger, Philadelphia, for Mamie Farley, appellee.

Joseph Litt, Philadelphia, for Richard Harrow, Jr., appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, P. J., and Hoffman, J., concur in the result.

Author: Watkins

[ 279 Pa. Super. Page 573]

These are appeals growing out of a trespass action in an intersectional vehicular accident. The cases were consolidated for trial. Richard Harrow, Jr., the plaintiff-appellee, sued the defendant, Henry T. Plonski, a bus driver and his employer, Southeastern Pennsylvania Transportation Authority (SEPTA), for injuries he sustained when his car was struck by a bus, owned by SEPTA and operated by Plonski. Richard Harrow, Jr., was brought in as an additional defendant on the basis that he contributed or was fully responsible for the accident, but the court below during trial entered a non-suit.

The jury returned verdicts in favor of Harrow in the amount of $10,000 and in favor of Farley in the amount of $25,000. Post-trial motions for judgment notwithstanding

[ 279 Pa. Super. Page 574]

    the verdict and for a new trial were denied and judgments were entered on the verdicts.

The facts briefly as stated by the court below are as follows:

"On June 2, 1971, at approximately 12:30 P.M., the plaintiff, Richard Harrow, Jr., was proceeding along Green Street in an easterly direction. At the same time, the defendant, Plonski, was operating a Septa bus in a southerly direction on 23rd Street. The intersection of 23rd and Green Streets only has a stop sign for Green Street. Mr. Harrow came to a complete stop at the corner and looked at the left. What he saw was Mr. Plonski waving his arm to indicate that it was alright (sic) for the plaintiff to proceed through the intersection. At this point the bus was approximately three (3) or four (4) car lengths from the corner, was moving at about five (5) miles per hour, and was continuing to slow down as if to stop when it reached Green Street. The plaintiff, seeing no other traffic, and having received the go ahead from the bus driver drove his 1968 Ford into the intersection. At a point a little more than halfway through the intersection, Harrow's car was struck by the bus on the rear portion of the driver's side of the vehicle. The bus was damaged on its right front side. Both vehicles were being driven down the center lanes of what are three (3) lane streets. The remaining four (4) outer lanes are used for parking.

"Just after the accident, the plaintiff got out of his car but before he could take more than a few steps he collapsed into unconsciousness and was rushed to the hospital. Insofar as the bus is concerned, while the driver was not hurt, four (4) passengers, including the other plaintiff, Mamie Farley, were injured."

Under these facts there is no merit in the motion for judgment notwithstanding the verdict and the court below properly denied it.

We will discuss the questions involved as to a new trial as follows:

[ 279 Pa. Super. Page 575]

A. The learned trial judge erred in refusing to charge the jury that Richard Harrow, Jr., had a continuing duty to look for approaching traffic as he entered the intersection regardless of any signals he allegedly received from the bus operator and his failure to do so was negligence.

Harrow testified that after he received the hand signal from Plonski he did not look back for other traffic on 23rd Street since he was looking at the bus and that was the only possible traffic. The bus was several car lengths away and it would serve no purpose if Plonski had given him the go ahead signal. SEPTA argues that its vehicle had the right of way but Harrow testified he had come to a complete stop and looked to his left and saw Plonski waving him ahead. The bus was being driven slowly and according to Harrow seemed to be slowing down to stop at Green Street so he drove into the intersection. He was a little more than halfway through the intersection when he was struck by the bus on the rear portion of the driver's side of his car. The damage to the bus was on its right front side.

Harrow had a right to assume that Plonski would not move into the intersection if the jury believed that he had been given the go-ahead signal. SEPTA argues that Plonski had the right of way and could not give it up. As the court below commented: "This theory would permit a defendant to proceed with reckless abandonment knowing that whatever occurred he could not be held responsible. Fortunately such is not the law." Peters v. Shear, 351 Pa. 521, 526, 41 A.2d 556 (1945) where the court stated:

"'A right-of-way' possessed by a motorist, is like a green light, not a command to proceed but a qualified permission to do so . . . A motorist, regardless of his possessing a theoretical 'right-of-way' must exercise such due care as is required by the situation confronting him."

The court below properly refused this point for charge.

B. The Learned trial court erred in charging that even though the bus driver had the right of way he was required to have his vehicle under such control as to avoid

[ 279 Pa. Super. Page 576]

    the accident. This charge was proper. See Peters v. Shear, supra.

C. The Learned trial judge erred in permitting Harrow to testify regarding his alleged loss of vision over a three year period without requiring competent medical testimony to show that such an injury was the natural and probable consequence of the accident.

We quote with approval from the disposition made of this complaint by the court below as follows:

"The testimony at trial established that when the plaintiff collapsed in the street immediately after the accident he was rushed to Hahnemann Hospital. When he became conscious he complained of a severe headache and that his left eye hurt. He was hospitalized for nine days during which time a head wound was stitched up, his eye was treated with medication, he had numerous skull x-rays taken and a compress was kept on his eye during his entire stay. When the plaintiff left the hospital he was still suffering from the headaches and a partial loss of vision. In addition to Harrow's own testimony, all of this was admitted into evidence as part of the medical records submitted at the trial.

"The plaintiff also testified that before the accident he had never had any problems with his head or, in particular, his eyes. He also noted that as a result of instructions given to him by the treating physician he did not seek additional attention for his eye but rather waited for the problem to clear up on its own. This occurred approximately three years after the accident.

"The defendants argue that expert medical testimony is mandatory in order to connect the injury to the accident. Such is ...


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