55 A.2d 771 | Pa. Super. Ct. | 1947
Argued October 13, 1947. In this trespass action arising out of an intersection collision between a trailer truck owned by the plaintiff and a bus of the defendant company, the jury returned a verdict for the plaintiff for damages to its trailer truck. The defendant's motion for judgment n.o.v. was refused by the court below and defendant has taken this appeal.
The collision occurred on August 16, 1944, at 6:45 p.m., at the intersection of Essington Avenue, a through highway, and Tinicum Avenue, a stop street, in the city of Philadelphia. The weather was clear and bright and *535 the streets were dry. At the time of the collision, the plaintiff's vehicle was being operated in a southerly direction on Essington Avenue, a 50-foot concrete highway, and the defendant's easterly on Tinicum Avenue, a 22-foot macadam street. The intersection is free from obstructions to view from all directions, and the collision took place about the center of the intersection.
The question before us is whether the operator of the plaintiff's vehicle, Murray, was guilty of contributory negligence as a matter of law.
The question of his contributory negligence was one for the jury to pass upon unless the negligence clearly appeared in the plaintiff's own case. Ward v. P.R.T.,
Murray testified that when he was 200 feet north of the intersection he saw defendant's bus the same distance west of the intersection and apparently slowing down for the stop sign, which was 55 feet west of the intersection. Murray's vehicle was then traveling between 30 and 35 miles an hour but he removed his foot from the gas pedal, which automatically slackened his speed. He looked to his left for traffic approaching from the east on Tinicum Avenue, looked in his rear mirror for traffic behind him — a truck was following him — and *536 then looked again at defendant's bus. At that time he was 50 to 75 feet north of the intersection traveling about 20 miles an hour. The bus, which had not stopped at the stop sign, appeared to be picking up speed and was about 55 feet away from the intersection. Murray gradually applied his emergency brake but at a speed of four or five miles entered the intersection where the collision occurred. He testified that if he had made a full application of his brakes he would have turned over.
Traveling on a through highway the plaintiff's driver had the technical right of way, although that did not relieve him from using proper care under the circumstances to avoid a collision with the defendant's bus. Roth v. Hurd,
In asking us to declare plaintiff's driver contributorily negligent as a matter of law, appellant relies primarily uponSchall v. Penn Transit Co.,
This principle of law is, of course, applicable to the present appeal, but the cases are factually distinguishable and every negligence case must stand on its own facts. Ward v. P.R.T.,
supra,
Murray testified that his vehicle and load weighed about 12 tons and that at a speed of 20 miles an hour it would require 100 feet for him to bring his vehicle to a stop. Defendant contends that Murray was negligent in not looking again at the bus when he was 100 feet north of the intersection since it would require that distance for him to bring his vehicle to a full stop before entering the intersection. However, the testimony "100 feet" was only opinion evidence and the jury could believe it or not.
In Ray v. Philadelphia,
Under the evidence in this case, the question of Murray's contributory negligence was for the jury. Cf. Holt v. Pariser,
Judgment affirmed. *540