No. 850 April Term, 1979, Appeal from the Order and Judgment of the Court of Common Pleas of Somerset County, at No. 227 Civil 1978.
Edward G. Kuyat, Jr., Johnstown, for appellant.
Nathaniel A. Barbera, Somerset, for Perigo, et al., appellees.
James F. O'Malley, Johnstown, for Carmen Perigo, appellee.
Cavanaugh, Hoffman and Van der Voort, JJ. Van der Voort, J., files a concurring and dissenting opinion.
[ 288 Pa. Super. Page 95]
Appellant contends that the lower court erred in: (1) failing to find appellee Carmen A. Perigo contributorily negligent as a matter of law; (2) instructing the jury on the theory of wanton or reckless misconduct; (3) denying appellant's two points for charge on the issue of contributory negligence; and (4) failing to specifically instruct the jury that Carmen A. Perigo's medical bills and lost wages could not be considered in awarding damages. We disagree with these contentions and, accordingly, affirm the judgment of the lower court.
On July 8, 1976, at approximately 4:00 p.m., Carmen A. Perigo was driving his car eastward on U.S. Route 30. His wife and son were passengers in the vehicle. He slowed his car as it rounded a curve at the top of a hill which was near the intersection of Route 30 and Pennsylvania Route 601. He then looked to the left and right, and, seeing no traffic, proceeded into the intersection. Meanwhile, appellant, Mary Beth Deegan, was driving south on Route 601 toward the
[ 288 Pa. Super. Page 96]
intersection. She passed signs indicating "Stop Ahead," "Junction Rt. 30," and "Stop." She testified also that although she had seen a flashing red light at the intersection, she did not know what it meant. She entered the intersection at a speed of 40 miles per hour, whereupon she collided with the right rear section of the Perigo vehicle. Mr. Perigo suffered a broken neck, and his son sustained minor injuries. The Perigos commenced this action against Ms. Deegan, alleging that she had been negligent and guilty of wanton and reckless misconduct. Ms. Deegan subsequently joined Mr. Perigo as an additional defendant, alleging that his negligence caused his son's injuries. Additionally, she contended that Mr. Perigo was contributorily negligent. At trial, the lower court instructed the jury, inter alia, on the theories of negligence, wanton and reckless misconduct, and contributory negligence. The jury returned verdicts in the amount of $72,000 for Mr. and Mrs. Perigo against Ms. Deegan, and $3,500 for Craig Perigo against Ms. Deegan only. The lower court thereafter denied Ms. Deegan's motions for judgment n.o.v. or a new trial. This appeal followed.
Appellant contends first that the lower court erred in denying her motions for a compulsory non-suit and a directed verdict because Mr. Perigo was contributorily negligent as a matter of law. "[C]ontributory negligence may be adjudged as a matter of law only in clear cases where the facts are indisputably fixed and there can be no reasonable doubt as to the inferences properly to be drawn from them . . . ." Sargeant v. Ayers, 358 Pa. 393, 397, 57 A.2d 881, 883 (1948) (citations omitted). Accord, Lavely v. Wolota, 253 Pa. Super. 196, 202, 384 A.2d 1298, 1302 (1978); Kimbob, Inc. v. Jumper, 201 Pa. Super. 559, 565, 193 A.2d 653, 656 (1963). "[H]owever, if there is any evidence upon the consideration of which reasonable minded individuals might disagree as to whether or not the plaintiff was guilty of negligence which contributed to the accident, then the question of such contributory negligence is for the jury, not for the court, to determine . . . ." Heffernan v. Rosser, 419 Pa. 550, 555, 215
[ 288 Pa. Super. Page 97]
A.2d 655, 658 (1966)(citations omitted). Viewing the record in the light most favorable to appellees, as we must,*fn1 we conclude that there was conflicting evidence as to whether Mr. Perigo was contributorily negligent. He testified at trial that he slowed down as he rounded the curve at the top of the hill, looked to the left and right, and saw no traffic. He further testified that he continued to observe the controlled intersection as he went down the hill and entered it. On cross-examination, Mr. Perigo admitted that he had slowed approximately two-tenths of a mile before entering the intersection and continued at a rate of 35 to 40 miles per hour into the intersection, which was controlled by a flashing yellow light. Appellant then questioned him as to allegedly inconsistent testimony at his deposition regarding whether and when he had looked to the left and right. On re-direct examination, Mr. Perigo testified that he had been confused by the deposition question and that he was positive that he had looked to the left and right before entering the intersection. This raised a conflict in his testimony which was for the jury to resolve. See, e. g., Parker v. Yellow Cab Co., 391 Pa. 566, 572, 137 A.2d 317, 320 (1958). Moreover, although a driver entering a controlled intersection has a duty to observe opposing traffic and traffic signals, Mr. Perigo was nevertheless entitled to assume that a driver approaching on the intersecting roadway would heed the signs and flashing red light. See Bascelli ...