141 A. 491 | Pa. | 1928
Argued March 13, 1928. This action, growing out of an automobile collision at a right-angle street intersection, resulted in a verdict *545 and judgment for plaintiff, from which defendant has appealed.
The record discloses no error. The brick paved highway, extending northerly from Connellsville, in Fayette County, known as the Connellsville Road, is crossed practically at right angles by a dirt road called the Woodvale Road. On the afternoon of June 17, 1923, as plaintiff was driving a Ford car west upon the last named road, with his wife sitting by his side, he stopped some distance before reaching the crossing, then started forward and, while on the pavement, was struck by defendant's northbound Packard car. The collision damaged the Ford, hurt the plaintiff and killed his wife. Plaintiff had the right of way, being first at the crossing (McClung v. Penna. T. Cab Co.,
Not excessive speed, but negligent management and lack of control were made the gravamen of plaintiff's complaint. He, however, having apparently qualified to do so, was permitted to express an opinion as to the speed of defendant's car, which he fixed at from fifty to fifty-five miles an hour. His cross-examination developed the fact that at the coroner's inquest he stated he was unable to estimate the speed. Under further cross-examination he confessed his inability to do so and that what he had stated as to that was a rough guess. Whereupon this part of his testimony was stricken out; but defendant's request that a juror be withdrawn, by reason of his having made such statement, was refused and the jury instructed to entirely disregard it. The question of the withdrawal of a juror depends somewhat on the atmosphere of the trial and is largely a matter for the discretion of the presiding judge. See opinion of Judge RICE in Lopresti v. Sulkin,
Plaintiff testified that from where he stopped he could only see to the south about twenty feet because of a store building, but that as his front wheels approached the pavement he looked again in that direction and saw defendant's car about sixty feet distant. There is nothing in the testimony to warrant the requested finding that he failed to look to his left. Being first at the crossing and having the right of way against northbound traffic, he could not be required to look constantly to the left when he must especially watch for southbound traffic, which had the right of way. Defendant's second and third requests were properly refused as they assumed that if plaintiff by keeping a sharp lookout to his left could have seen defendant's car and avoided it he could not recover. Whereas, plaintiff being first at the crossing and having the right of way was not bound to keep out of defendant's way; but on the other hand, defendant was bound to keep out of his way and, as above stated, plaintiff had the right to assume he would do so. Of course, one having the right of way would not be justified in testing a manifest danger. The question of contributory negligence, however, was for the jury and carefully submitted to them.
The judgment is affirmed.