Fowler v. Smith ( 1970 )

Opinion by

Cercone, J.,

This is an appeal from the lower court’s grant to defendant of a judgment n.o.v. after a jury’s verdict in favor of the plaintiff in the amount of $7,500.00. The lower court found plaintiff to be contributorily negligent as a matter of law and thus not entitled to the jury’s verdict. Plaintiff has appealed to this court.

Our study of the case compels us to affirm the jury’s verdict in favor of plaintiff and to hold as error the grant of the judgment n.o.v. Viewing, as we must, the evidence in the light most favorable to plaintiff and giving him the benefit of all favorable inferences, and resolving all conflicts in the testimony in his favor, we find that the record and the law supports the jury’s determination.

The record reveals that plaintiff was proceeding west, on Jamison Street, in the County of Allegheny, Borough of Monroeville, Pennsylvania, approaching that street’s “T” intersection with Monroeville Road which runs north and south. Jamison Street and Monroeville Road are two-lane highways. Plaintiff was approaching Monroeville Road for the purpose of making a right turn thereon, and as he so approached the intersection, the traffic light, which is suspended in the center of the intersection, showed red for his direction of travel. He stopped ten (10) feet from the curb lane, from which point his view to the left was 150 feet, and looked both to his left and right. When the light turned green, plaintiff again looked to his left and then to his right, noting that a car to his right, which he had been observing, had come to a stop at the light. Plaintiff then began his right turn onto Monroeville Road, and when he was ten (10) feet onto Monroeville Road, with the rear of his car still on Jamison, the left front of his car was struck by the automobile driven by defendant, who had come from the left on Monroe-ville Road, the impact knocking the right side of plaintiff’s car into a corner telephone pole. Defendant’s car proceeded 300 feet down the road after the impact.

One of the plaintiff’s witnesses testified that defendant had been driving slowly (but gave no estimate of the speed), talking and gesturing to his wife, and that the light was red before defendant entered the intersection, and that defendant went through the red light, struck the plaintiff’s ear and continued 200 or 300 feet down the road.

Another of plaintiff’s -witnesses testified that the light was red for a second or more as the defendant’s car approached from the opposite direction, and that the defendant’s car never stopped hut came through and hit the plaintiff.

Under the above facts the court below held the plaintiff not entitled to the jury’s verdict, it relying on the rule which it states to be “If the facts surrounding an intersection collision show conclusively that the motorist must not have looked for approaching traffic before entering the intersection, then the motorist is deemed not to have looked, whether he said he did or not, and is contributorily negligent as a matter of law.” For this rule and the application thereof, the court below relies on the decision in Perpetua v. Philadelphia Transportation Company, 380 Pa. 561 (1955). However, a reading of that decision clearly reveals it was limited to the fact situation there involved, that of an intersection of three avenues “each wide enough to accommodate at least six lanes of traffic” which complicated situation imposed the duty to continue to look while traversing the intersection. The Court there held, at page 563, that the record Was barren of any testimony as to Avhether plaintiff “continued to look as he proceeded through the intersection”, the Court noting “the law only makes obligatory the rule of common sense regarding the duty of a driver at the intersection of streets, Avhere traffic is very dangerous because conflicting.”

The intersection in the instant case is that of one two-lane highway leading into and ending at its intersection with another two-lane highway, or what is commonly known as a “T” highway. Once plaintiff stopped and had a clear view of 150 feet, he could logically and legally assume that it was safe for him to commence his turn in accordance with the authority of the green light which was in his favor. After that, it was his duty to continue to look in the direction of his turn. In Cericola v. Redmon, 182 Pa. Superior Ct. 19 (1956), plaintiff looked as he approached the intersection, saw nothing, then proceeded and was struck by defendant whom plaintiff stated he saw only 4 or 5 fed away, almost at the time of impact. We there emphasized the fact that the green light was in plaintiff’s favor and stated: “. . . he must not be held to the exact degree of care that would have been required of him had there been no light or stop sign in his favor at the intersection. To hold otherwise would thwart the purpose of through highways and traffic lights to facilitate the flow of traffic . . . Cericola did not have a legal right to go blindly into the intersection regardless of other vehicles that might have already been within it. But, this he did not do. As he approached the intersection he did look for traffic and saw nothing approaching. Under the circumstances of this case the question of contributory negligence was for the jury.”

The fact that plaintiff may have had a more distant view at some point closer to the curb would not convict him of contributory negligence in failing to avail himself of that additional view, for there is no duty imposed upon one proceeding with the authority of the green light to look all the way down the intersecting street to ascertain the presence of a motorist whose collision with plaintiff could not be anticipated in view of the distance and the traffic signal. See Kline v. Kachmar, 360 Pa. 396 (1948).

Futhermore, the testimony of one of plaintiff’s witnesses would indicate that plaintiff’s view from the curb would not be as great as estimated by plaintiff himself, and of course, it was for the jury to reconcile any conflicting testimony. As stated in Cardone v. Sheldon Hotel Corp., 160 Pa. Superior Ct. 193 (1947) : "... if on one part of the plaintiff’s testimony or that of a witness he is entitled to go to the jury and on another part lie is not ... it is for the jury to reconcile such conflicting statements and say which shall prevail.” So, also, with respect to the testimony of the plaintiffs witness that defendant proceeded slowly on Monroeville Road, through the red light and to the point of collision, it was for the jury to reconcile this general testimony, which did not include any estimate as to rate of speed, with the uncontradicted evidence that defendant did not avoid the collision though plaintiff was already committed to making his right turn and that the force of the impact caused plaintiffs vehicle to be pushed into the corner telephone pole and defendant’s vehicle to travel another 300 feet before coming to a stop.

It is our holding that under all the facts and circumstances of this case, it was for the jury to determine first, whether or not plaintiff had allowed himself a sufficient view to the left before making his right turn and second, whether or not defendant was within such view at the time plaintiff committed himself to making that turn. Such findings were matters peculiarly within the province of the jury as they depended not on incontrovertible physical facts but on the existence of varying and estimated distances and speeds, which distances and speeds in turn depended on oral testimony as supplemented by the evidence of the force and manner of collision.

Judgment and order entered below reversed and record remanded with directions to enter judgment on the verdict.