177 A. 831 | Pa. | 1935
Plaintiff was injured by an automobile owned by Anna Brobst and operated by her daughter, Margaret. Separate suits were brought, against the daughter for her alleged negligence, and against the mother on the ground that the daughter was her servant. From the verdicts and judgments in plaintiff's favor, defendants have appealed.
The accident occurred while plaintiff was attempting to cross Lloyd Street, at the intersection of Main Street, in Shenandoah, Schuylkill County. According to her own uncontradicted testimony, she was walking southwardly on the western side of Main Street, and, having waited on the curb for the traffic signal to change, started across Lloyd Street when the light was green in her favor. She testified: "I took one step with my right foot down off the curb, and put my left foot out to make another one when I was struck." The right front wheel of the car ran over the instep of her left foot, and when she first began *327 to realize what had occurred she found herself leaning against the car between the two wheels on the right side, the car having stopped in the meantime. Plaintiff testified further that she looked both ways before starting to cross and saw no machines approaching, that she would have seen the car if it had been coming across the street, that she also looked to see whether anything was coming around the corner, and that she did not know from what direction the car came. Miss Brobst's testimony was to the effect that she was going west on Lloyd Street, that when she entered the intersection the traffic light was green in her favor, that she did not notice plaintiff until the latter came in contact with the car, and that when the car stopped plaintiff was alongside the right front fender. It appeared from other testimony that the width of Main Street was about fifty feet and that each of its sidewalks was about fifteen feet wide.
It is unnecessary to consider whether the evidence was sufficient to sustain the finding of negligence in the operation of the car, since we are of opinion that plaintiff was contributorily negligent as a matter of law. Undisputed testimony discloses that the car was approaching on Lloyd Street from the eastern side of Main Street, that plaintiff was not struck by the front of the car but that her foot was run over by its wheel, and that the accident occurred just as plaintiff was making her second step from the curb and was no more than two or three feet from it. Since the car was stopped before its rear wheel passed over her foot, it could not have been going very fast (see Wolf v. P. R. T. Co.,
That plaintiff was under a duty to look before crossing cannot be doubted. The duty to look rests at all times upon everyone in the use of streets (Kauffman v. Nelson,
Plaintiff relies on Rosenthal v. Phila. Phonograph Co.,
The court below, without consideration of the merits, entered pro forma an order overruling defendants' motions for a new trial and for judgment n. o. v., on the ground that its rules of court were violated in that no one appeared for defendants on the day when argument on the motions was called and no brief of argument in support of the motions was filed. The rules provided that "If the party maintaining the affirmative of any issue or cause is not ready to proceed or fails or neglects to furnish *330 to the judge or judges, as the case may be, a written brief of argument, as hereinafter prescribed, at the time the case is called for, and before, argument, the rule, motion, exceptions, or other matter or thing contended for, shall be deemed abandoned or withdrawn, and an adverse order or decree must then be entered pro forma in favor of the opposing party." It is, of course, essential that orderly procedure be maintained in the conduct of litigation and that rules of court designed for that purpose be scrupulously followed. Nor have we any doubt that the rules applied in the instant case were entirely reasonable. Such rules, however, are intended solely for the purpose of governing procedure in the lower courts, and cannot be binding upon us in the consideration of an appeal. We do not approve the conduct of defendants' counsel in not moving to open the judgment and thus giving the court below an opportunity to pass upon the case on its merits. But it would be impossible for us to do justice by affirming the pro forma dismissal by the court below of defendants' motions, when a consideration of the merits shows that plaintiff is clearly not entitled to recover. The record discloses that defendants at the trial duly presented points requesting binding instructions and, after the verdicts were returned, promptly moved for judgment n. o. v. and for transcription of the evidence. They are therefore entitled, under section 1 of the Act of April 22, 1905, P. L. 286, to judgment n. o. v., if such judgment is "warranted by the evidence." Since we are of opinion that such judgment is warranted by the evidence, it must be so entered.
The judgments of the court below are reversed and judgment is here entered for defendants. *331