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decided: June 19, 1989.


Appeal from Common Pleas Court, Philadelphia County, Honorable Bernard Goodheart, Judge.


Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, Norma S. Weaver, Deputy in Charge of Claims, Handsel B. Minyard, City Sol., Philadelphia, for appellants.

Avram B. Adler, Adler and Kops, Philadelphia, for appellee.

Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ. Barry, Judge, dissenting. Palladino, J., joins in this dissent.

Author: Crumlish

[ 126 Pa. Commw. Page 649]


Morton Solomon and the City of Philadelphia (collectively referred to as "the City defendants") appeal a Philadelphia County Common Pleas Court order denying their post-trial motion for a judgment non obstante verdicto or for a new trial. We affirm.

Joseph Baum sued the City and its employee, Deputy Police Commissioner Morton Solomon, to recover for personal injuries sustained when the City vehicle Solomon was operating collided with Baum's automobile. The accident occurred in the intersection of Bustleton Avenue and Faunce Street in Philadelphia as Baum travelled west on Faunce and Solomon travelled north on Bustleton. Following a jury trial in which the issues of Solomon's negligence and Baum's contributory negligence were raised, the jury returned a verdict in Baum's favor.

The City defendants moved for entry of judgment against Baum, or alternatively a new trial, contending that he was contributorily negligent as a matter of law*fn1 and that there was no evidence of negligence by Solomon. The motion further alleged errors in evidentiary rulings and jury instructions. The trial court denied the motion. The City defendants appeal to this Court.

The City defendants initially contend that they were entitled to judgment n.o.v. because the undisputed evidence established, as a matter of law, that Baum was contributorily

[ 126 Pa. Commw. Page 650]

    negligent in failing to look in both directions and control his vehicle while traversing the intersection. We disagree.

A trial court may enter judgment n.o.v. only in a clear case where, after reviewing the evidence most favorably to the plaintiff, no two reasonable minds could fail to agree that the verdict was improper. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa. Super. 49, 537 A.2d 814 (1987). The court must consider only the evidence which supports the verdict and afford the non-moving party the benefit of every fact and inference deducible therefrom. Id.

Moreover, contributory negligence should not be declared as a matter of law unless the record inescapably leads to that conclusion; otherwise the question is reserved for determination by the jury. Smith v. United News Co., 413 Pa. 243, 196 A.2d 302 (1964). The court may remove this question from the jury only where the evidence is so clear and palpable that there is no room for fair and reasonable men to differ in their conclusions as to its existence. Gillingham v. Patz, 429 Pa. 308, 239 A.2d 287 (1968).

When viewed in the light most favorable to the plaintiff, the evidence discloses the following. Baum testified that he was travelling in a westerly direction on Faunce Street, a narrow residential road, toward Bustleton Avenue, a major artery running north and south. He stopped at the stop sign at Bustleton Avenue and looked to his right to ensure that there were no southbound vehicles approaching the intersection. He then looked to his left in order to observe any northbound vehicles; from this position he could see the immediate preceding intersection and that it was regulated by a traffic light. He could also see vehicles travelling northbound on Bustleton approaching that intersection and the red traffic signal governing those northbound vehicles. He then looked to his right and then again to his left and saw that the traffic signal was still red. At this

[ 126 Pa. Commw. Page 651]

    point, he started through the intersection. Notes of Testimony (N.T.), 11/15/84, pp. 1.86-1.89.

Baum testified that he could not recall any further details except awakening in the hospital. However, it is undisputed that the Solomon vehicle was travelling northbound on Bustleton when it struck the Baum vehicle in the Faunce Street intersection.

While this evidence and the fact of collision may lead some minds to speculate that Baum failed to continue his lookout while crossing the intersection, it falls far short of the necessary "clear and palpable evidence" inescapably leading to a conclusion of contributory negligence. Gillingham. There was no admission by Baum, nor was there any other evidence which could be characterized as "clear and palpable," showing that he failed to continue looking both ways. In such cases where the plaintiff cannot recall his specific actions due to retrograde amnesia, it is just as reasonable to infer that he performed the duty imposed by law. Gruskin v. Stitt, 339 Pa. 137, 13 A.2d 412 (1940). In any event, such inferences are for the jury's making and should not be determined as a matter of law. See Waddle v. Nelkin, 511 Pa. 641 515 A.2d 909 (1986) (Opinion Announcing Judgment of Court by Zappala, ...

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