19 A.2d 499 | Pa. Super. Ct. | 1941
Argued March 4, 1941.
The plaintiff brought this action in trespass to recover damages to his truck and for personal injuries as the result of an automobile collision. The trial resulted in a verdict for the plaintiff in the sum of $507.50. The defendant filed motions for a new trial and for judgment n.o.v. The learned court below granted a new trial on the ground that the charge to the jury was inadequate under our rulings in Hess et al. v. Mumma et al.,
The accident occurred in the city of Scranton at the intersection of Wyoming Avenue and New York Street. Wyoming Avenue is a through highway extending in a northerly and southerly direction, 50 feet in width between curbs, with two 20 foot lanes of traffic, divided by a grass plot 10 feet wide. New York Street is 30 feet wide between curbs and runs in an easterly and westerly direction across Wyoming Avenue at right angles.
The plaintiff, at 2:30 p.m. on October 26, 1938, a clear, bright day, was driving his 1/2 ton Ford truck south in the westerly or right traffic lane on Wyoming Avenue toward its intersection with New York Street. The defendant was driving her sedan car west on the northerly side of New York Street and was approaching its intersection with Wyoming Avenue.
Under the plaintiff's testimony, which must be read in the light most favorable to him in passing upon the present controversy, when he was about 15 or 20 feet north of the intersection, traveling at 18 or 20 miles per hour, he looked to his left or east, the direction from which the defendant was traveling on New York *536 Street, and saw no vehicles. As he was about to enter the intersection he looked again in both directions. He had a view then to his left of "possibly a few feet" beyond and east of a stop sign located on New York Street, 15 feet from the northeasterly corner of the intersecting streets, and he observed no traffic approaching or in the intersection. Later he testified that he could possibly see in that direction about one-half block. He then proceeded across the intersection at the rate of 18 to 20 miles per hour, thus going approximately 27 to 30 feet per second, and according to his direct examination continued looking. In cross-examination he stated that when he was in the intersection he did not look either to the left or to the right, and first saw the defendant's car when "she was almost on top of me" veering toward the southerly side of the intersection at a speed of 30 miles per hour. When his truck was 2/3 to 3/4 of the distance across New York Street the defendant's car struck the rear left side of his truck turning it over on its right side against a telephone pole located on the western side of New York Street, 14 feet beyond or south of the southerly side of the intersection. Defendant's car continued in a southwesterly direction, passed over the curb, crashed into a stop sign on New York Street near the southwest side of the intersection, then ran 60 or 70 feet through a hedge hitting an iron fence and finally stopped in the yard of the second lot west of the corner.
George Oakes, who was driving a truck following about 30 feet in the rear of the plaintiff's truck, was about to enter the intersection when the plaintiff had almost crossed New York Street. Oakes did not observe the defendant's car until it was in the intersection. He corroborated plaintiff as to his rate of speed, and that the defendant's car struck the plaintiff's truck as he had described.
The defendant gave a different version of the accident. She testified that when she reached the intersection *537 she came to a full stop and after looking to the left and right, not seeing any cars, she proceeded to cross the intersection in low gear. Then she "happened to see" as she "turned around" plaintiff's car 20 feet away "coming down the street pellmell." In an endeavor to avoid an accident she made a left turn, crossed in front of plaintiff's motor and mounted the curb on the southwestern corner of New York Street. She denied that her car came in contact at any time with the plaintiff's truck and stated that the damages thereto and the injuries he sustained were the result of the truck coming in contact with the pole.
While it is true that there was some conflict in the plaintiff's testimony as to the precaution he took, that does not bar his recovery. It was the duty of the jury to reconcile his inconsistent statements and determine which should prevail: Adamsv. Gardiner,
The plaintiff in approaching the intersection had the technical right of way, as he was on defendant's right. We recognize, however, that that fact did not warrant his driving his car into an inevitable collision. If plaintiff's car reached the intersection first under the conditions *538 he stated prevailed he could reasonably assume that one coming from his left would recognize his superior right to the intersection. This is especially true as a driver on New York Street was confronted with a stop sign. The defendant, as a considerate driver, should have taken the precaution required by our statute, of stopping her car at the warning sign: Adams v.Gardiner, supra, 581.
In Rhinehart v. Jordan et al.,
This accident occurred, as above noted, after the plaintiff had almost completed crossing New York Street. As the learned court below pointed out there was evidence to support the finding that defendant's car had sufficient room to pass behind the plaintiff's truck in safety had she remained on her side of the highway, instead, as she testified, she "just shot out in front of him." Even if we assume that the plaintiff had observed the defendant's car traveling at the rate of speed she testified, as he was about to enter the intersection, the court could not say as a matter of law that he was not justified in concluding that he could cross the intersection in safety, or that the danger was so obvious *539 that he was guilty of contributory negligence. In other words it was not reasonably likely that a driver approaching his left would disregard the stop sign and that plaintiff's attempt to exercise his right of way would probably result in a collision. See Adams v. Gardiner, supra, p. 584.
The appellant argues that Spear and Company v. Altmyer,
In the Clee case on the street over which defendant's truck had been driven there was no stop sign and the defendant approached the intersection on plaintiff's right. The plaintiff, therefore, was not justified, as in the instant case, in assuming that the defendant's truck would stop before entering the intersection.
In the McCandless case both the trucks reached the intersection about the same time and the plaintiff made no attempt to stop after he saw defendant's truck, to avoid a collision. It was there stated p. 187: "The testimony of plaintiff's driver is subject to no other construction than that he did not look on Locust Street for approaching traffic from the west until he was in the *540 intersection, traveling at an undiminished speed 20 or 25 miles per hour, his view on that street having been obstructed by buildings as he approached the intersection."
Whether or not this plaintiff discharged his duty as a reasonably prudent man would have done under the circumstances was in our judgment a question for the jury. It is not such a clear case that the court should have declared as a matter of law that the plaintiff was guilty of contributory negligence.
Order is affirmed.