14 A.2d 591 | Pa. Super. Ct. | 1940
Argued April 22, 1940. The collision, out of which this action of trespass arose, occurred shortly before one o'clock p.m. on October 6, 1938, in the borough of Greenville. The minor plaintiff was operating a motorcycle in a southerly direction on South Mercer Street, which is approximately 25 feet wide. The defendant, who had been driving an automobile in the opposite or northerly direction on that street, brought his car to a stop on the east side thereof, about a car's length south of the curbline on Washington Street, which intersects Mercer Street on the west side only, the east side being a dead end.
The minor plaintiff testified at the trial that he had been traveling before the accident at the rate of 15 or 20 miles an hour and was within about 75 feet of Washington Street when he first saw defendant's car standing on the east side of Mercer Street; that defendant started to make a lefthand turn in front of him to cross South Mercer Street when he was about 15 feet away. The defendant intended to enter Washington Street which is 22 feet 4 inches wide. To reach the place the collision occurred he had to go north 11 feet thence west across South Mercer Street 23 feet or a total distance of 34 feet. The minor plaintiff, when he saw defendant turn, put on his brakes and reduced his speed immediately before the impact to 4 or 5 miles per hour, but according to his testimony he was unable to prevent his motorcycle hitting the front fender of the automobile.
Defendant testified that when he began to move the *295 motorcycle was 150 feet distant and that he had ample time to cross the street. It is unnecessary to enter into a discussion of the conflicting stories relative to the accident. We are accepting, as we must, the minor plaintiff's testimony in the most favorable light. The trial resulted in verdicts in favor of the minor and his parents. This appeal followed.
The appellant's single assignment of error is to the refusal of the lower court to grant his motion for judgment n.o.v. He contends that Seymour Ross' testimony shows that it was physically impossible for the defendant, moving at about 7 to 8 miles an hour, to travel at least 33 feet to the place of the accident, while the minor plaintiff riding at twice his speed advanced only 15 feet.
As the learned court below points out the fallacy of that reasoning is that the speed of the automobile was not based upon the testimony offered by plaintiffs, but solely upon that of the defendant. The jury was not bound to accept as true defendant's estimate of his speed, of which he did not seem very certain, even though his testimony was uncontradicted; his credibility was for the jury: Ferguson v. Charis,
The appellant argues also that the evidence disclosed that the plaintiff was guilty of contributory negligence in that he was passing a schoolhouse that was located on the northwest corner of Washington and South Mercer Streets, at a speed in excess of 15 miles per hour at the noon recess in violation of Article X, Section 1002 of the Vehicle Code of May 1, 1929, P.L. 905, *296
as finally amended by the Act of June 5, 1937, P.L. 1718, § 2, 75 Pa.C.S.A. § 501 (b) (2). It is clear that the purpose of this statute was to protect school children, who are not involved herein, during recess periods or at opening or closing hours of school: Glowaski et ux. v. Rhoads,
The plaintiff, undoubtedly, was somewhat contradictory in his testimony as to the speed he had been traveling before the collision and the jury could have concluded that he was violating the law in that respect. Assuming that he was, that did not convict him of negligence unless it can be shown that the speed he was then traveling was the proximate cause of the accident.
In Collichio et ux. v. Williams,
We said in Purol, Inc. v. Great Eastern System, Inc.,
Our attention has been directed by the appellant to *297 Jinks et al. v. Currie,
The appellant argues also that it was the duty of the minor plaintiff approaching an intersection to yield the right of way to him as he was first in the intersection, turning to the left to cross the street and that the operator of the motorcycle was negligent in not stopping his machine before the collision.
That contention involves a factual situation which was submitted to the jury under proper instructions as to the law and it found against the defendant. In Mehler v. Doyle et al.,
A careful review of all the evidence in this case and the able argument of the appellant convinces us that the evidence does not clearly show that the minor plaintiff was so unmistakably guilty of contributory negligence that we would be justified in disturbing the verdicts reached after a fair trial free of legal errors. See Altomari v. Kruger et al.,
Judgments are severally affirmed.