Borisoff v. Penn Fruit Co., Inc.
69 A.2d 167
Pa. Super. Ct.
1949
Check Treatment

Opinion by

Ross, J.,

This is an appeal by the plaintiff in a case involving-damage to his automobile resulting from an intersection collision with defendant’s truck. At the close of. plaintiff’s testimоny, the trial judge .entered a compulsory nonsuit which the court en banc refused tо take off. and this appeal followed.

In Sargeant v. Ayers, 358 Pa. 393, 395, 57 A. 2d 881, 883, Mr. Justice Jones stated: “On a question as to the *574 appropriateness of а compulsory nonsuit, the pertinent inquiry is whether the plaintiff’s negligence appears so irrefutably from the evidence in his own case that to ‍​​‌‌‌​​‌‌​​​​‌​​​​‌‌‌​‌​‌‌‌​​‌​​‌​​‌‌‌​‌‌​​‌​‌‌​‍permit a jury to absolve him in the circumstances would be to elevate caprice over lеgally conclusive fact. . . . Or, as was stated in Virgilio v. Walker and Brehm, 254 Pa. 241, 244-245, 98 A. 815, ‘. . . a nonsuit can be еntered only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.’ ”

The sole question involved is whether the plaintiff was guilty of contributory negligеnce as a matter of law, and in determining this we must view the evidence in the ‍​​‌‌‌​​‌‌​​​​‌​​​​‌‌‌​‌​‌‌‌​​‌​​‌​​‌‌‌​‌‌​​‌​‌‌​‍light most favorable to him and give him the benefit of every doubtful or obscure fact and the reasonable inferences that a jury might deduce from the evidence: McCreery v. Westmoreland Farm Bureau, Co-operative Assn., 357 Pa. 567, 55 A. 2d 399.

The collision out of which the case arose occurred on November 9, 1945, at the intersection of Sixth and Pine Streets in Philadelphia. Each street is 26 feet wide with single trolley trаcks in the center and each is a one-way street, Sixth for southbound traffic and Pinе for westbound. A traffic signal light is erected at the intersection. Driving south on the west side оf Sixth Street, the plaintiff stopped his car for a red traffic signal on Pine, with a line of cars following him. A truck being driven by one Militello was also traveling south on Sixth, arrived at thе intersection at about the same time and stopped about two feet ahead of plaintiff’s car and to its left. When the light turned green, the plaintiff looked tо his left but could not see east on Pine Street because of Militello’s truck. He did,-hоwever, have an unobstructed view of the intersection which was clear as *575 bоth his car and Militello’s truck moved forward into the intersection. Militello, whose view to the left or east on Pine was unobstructed, seeing defendant’s truck traveling “between 30 and 35” miles an hour about “20 or 30 feet back on Pine Street”, apparently ‍​​‌‌‌​​‌‌​​​​‌​​​​‌‌‌​‌​‌‌‌​​‌​​‌​​‌‌‌​‌‌​​‌​‌‌​‍abоut to be driven through a red light “stopped immediately” but the plaintiff “pulled put and stopped a few feet” beyond the front of Militello’s truck where the plaintiff’s car was struck by defendant’s truck which “swerved and hit me, mashed my whole car up”.

The learned сourt below held that the plaintiff was guilty of negligence as a matter of law because, although the traffic light was in his favor, he entered the intersection when his view east on Pine Street was obstructed by Militello’s truck: “The testimony of the plaintiff that he рroceeded to cross Pine Street without being able to see oncoming trаffic on that street, proves his causal negligence beyond reasonablе contradiction.”

This case differs in no material fact from Pellegrini v. Coll, 133 Pa. Superior Ct. 294, 2 A. 2d 491, and Rea v. Pittsburgh Rys. Co., 344 Pa. 421, 25 A. 2d 730, in which it was held that the negligence of the plaintiff was ‍​​‌‌‌​​‌‌​​​​‌​​​​‌‌‌​‌​‌‌‌​​‌​​‌​​‌‌‌​‌‌​​‌​‌‌​‍for the jury. What was said by Mr. Justice Drew in the Rea case at pages 424-425 applies here: “He cаutiously started through the crossing with the traffic signal in his favor and he had a right to assume that thе street car, which he could not see, would not be operated through the red traffic light, into the intersection and across his path. ... he Vas not obligated to stop his car and proceed ahead on. foot in order to determine whеther the intersection was clear’. . . . He could not have remained stationary when the signal was in his favor and stopped the movement of other automobilеs in his lane of traffic in order to get an unobstructed vieAV of traffic approаching from his left. If that were required, multiple traffic lanes for automobiles to move simultaneously in the same direction would obviously *576 be rendered useless, for they would further increase, ‍​​‌‌‌​​‌‌​​​​‌​​​​‌‌‌​‌​‌‌‌​​‌​​‌​​‌‌‌​‌‌​​‌​‌‌​‍rather than decrease, traffic congestion”.

In our opinion this appeal is ruled by the Pellegrini and Rea cases and, therefore, the plaintiff’s negligence is for a jury’s determination.

Judgment reversed, and new trial awarded.