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KIM EAGLESON v. CARMEN MALONE AND ROBERT PEART. APPEAL CARMEN MALONE (09/23/83)

filed: September 23, 1983.

KIM EAGLESON
v.
CARMEN MALONE AND ROBERT PEART. APPEAL OF CARMEN MALONE



No. 2220 Philadelphia, 1981, No. 2933 Philadelphia, 1981, Appeal from the Judgment of the Court of Common Pleas of Montgomery County, Civil Action, Law, No. 79-17561.

COUNSEL

William H. Kinkead, Norristown, for appellant.

Albert S. Fein, Philadelphia, for Eagleson, appellee.

Frederick T. Lachat, Philadelphia, for Peart, appellee.

Wieand, McEwen and Popovich, JJ. Popovich, J., concurs in the result.

Author: Mcewen

[ 319 Pa. Super. Page 164]

Appellant claims in these consolidated appeals that the trial judge erred in connection with each of two orders with regard to the liability of parties to this personal injury action. Appellee Eagleson was a passenger upon a motorcycle operated by appellee Robert Peart when it collided with an automobile operated by appellant Carmen Malone. Appellee Eagleson initiated a suit in trespass against appellant Malone to effect a recovery for the serious injuries she

[ 319 Pa. Super. Page 165]

    suffered as a result of the collision. Appellant Malone joined appellee Peart as an additional defendant. The trial was conducted before the distinguished Judge Samuel W. Salus and a jury and, at the conclusion of the testimony, the trial judge granted the motion for a non-suit that had been filed by appellee Peart, the additional defendant. As a result, the sole issue for the determination of the jury was the negligence of appellant Malone, the named defendant in the trespass action. The jury found in favor of appellant Malone. Appellee Eagleson filed a motion for new trial and a motion for judgment n.o.v., while appellant Malone filed a motion to remove the compulsory non-suit that had been entered in favor of appellee Peart as additional defendant. After argument before the court en banc, the court entered an Order that (1) denied the motion of appellant Malone to remove the non-suit in favor of appellee Peart, (2) granted the motion of appellee Eagleson, the plaintiff, that judgment n.o.v. be entered in her favor and (3) directed that a trial be conducted solely upon the issue of the damages to be awarded appellee Eagleson. We reverse and remand for a new trial upon all of the issues.

Appellant Malone was operating his automobile in a northerly direction on a two lane highway at approximately 5:00 p.m. on a clear, sunny, summer afternoon when he approached an intersection into which he intended to make a left-hand turn so as to travel in a westerly direction. Appellee Peart was operating his motorcycle in a southerly direction upon the same roadway and appellee Eagleson was a passenger upon that vehicle. The roadway upon which both vehicles were traveling widens at the intersection so that there are two through lanes and a left turn lane in each direction. The testimony of the investigating police officer disclosed that the two through lanes are controlled by overhead signals with the sequence of amber, red and green, while the left-hand turn lanes are controlled by a separate traffic standard erected upon a medial barrier, bearing a sign indicating that it is a left turn signal and utilizing a sequence of amber, red and green arrow. The

[ 319 Pa. Super. Page 166]

    officer testified that the overhead signals for the through traffic in either direction are red when the left-hand turn signal is green or amber and the left-hand turn signal is red when the overhead signals for the through traffic are green or amber, and further stated that he determined, as part of his accident investigation, that the traffic signals were all working in proper sequence. Appellant Malone testified that in preparation for a left-hand turn, he moved into the left-hand turn lane and was traveling at approximately thirty miles per hour and was roughly forty feet from the traffic standard when he noticed the green signal for left-hand turn traffic. He related that the light never changed and he never stopped from that time until the collision occurred, that he never saw the motorcycle at any time prior to the impact and that, while he had looked in a northerly direction for southbound through traffic when he was some forty feet from the intersection, he did not thereafter look for such traffic since he had the green left turn arrow.

Two disinterested eyewitnesses, one the driver and the other a passenger in the second car behind appellant Malone in the left-hand turn lane, both testified that the vehicle of appellant and their vehicle had been waiting for the green turn signal when the vehicle of appellant proceeded ...


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