Marshall v. Staab , 1924 Pa. Super. LEXIS 146 ( 1924 )

Opinion bt

Trexler, J.,

The case arose out of a collision between two automobiles at the intersection of Forbes and Halket Streets in Pittsburgh. Halket Street runs north and south, Forbes Street east and west. The plaintiff, Marshall, was proceeding in his automobile southwardly on Halket Street and as he approached the intersection of the two streets brought his automobile almost to a stop. He looked toward the left. At that time all the traffic on Forbes Street to his left had stopped. When the front of his car was between the first set of street car tracks on Forbes Street he looked to the right and saw nothing, he then proceeded with Ms automobile to cross the other tracks and when the front of his car was a couple of feet over the second set of tracks he was struck by defendant’s car. When he saw defendant’s car, he was just in time to set his brakes before he was struck, and came practically to a stop. The defendant’s car struck the right front mudguard of plaintiff’s car and gave it a blow which threw it around. Defendant’s car then proceeded forward and struck a telegraph pole and kept on for about 100 feet when it stopped. The plaintiff recovered in the county court. The court of common pleas reversed the judgment of the county court and directed that judgment be entered in favor of the defendant n. o. v. holding that as a matter of law the plaintiff was guilty of contributory negligence. The plaintiff’s contributory negligence in the opinion of the court consisted “in not looking when he came to the intersection of the two streets, and in not looking until he was on the first track and but ten feet away from the line in which defendant’s automobile was moving and not at that time seeing the defendant’s car at all, and further, it seems to us, that the only reasonable inference from the evidence is that the plaintiff, when he came to the crossing, was not so far in advance of the other on his right as to afford a reasonable time to clear the crossing, and that in going on under those circumstances, he was guilty of contributory negligence.” The jury having found in favor of the plaintiff, of course every inference in his favor should be given to him. We do not see how his not looking to the right when he entered the street contributed to the accident. Certainly he might, with reason, when entering the street first look to the left because the first line of traffic came against' him from that direction. When he advanced to the first track and looked, there is no reason to believe that he could see less than if he had looked when he entered the street. He did look when he was between the first car tracks and saw nothing. If the jury believed his story that he looked and saw nothing, they might have inferred that defendant was so far away that he was not within the area which ordinarily would be covered in the act of looking. Plaintiff was not required to apprehend that defendant was going to approach at a reckless rate of speed. The circumstances surrounding the accident would bear out the inference that the defendant was going at a very rapid rate, even after he struck plaintiff’s car, he struck a telegraph pole and then continued 100 feet before stopping. The testimony of the plaintiff was that when he saw defendant’s car he stopped practically at once. Although, under the law, had these two parties come to the intersection at the same time, the defendant would have had the right of way, the fact that the plaintiff did not see defendant when he was at the second track would indicate that he must have been some distance away and that, therefore the plaintiff might reasonably believe that he had the right of way by reason of his being on the crossing without any other car being near to the right. In view of these facts, we do not think the case was one that the court could decide that contributory negligence was present as a matter of law. The case presents some difficulties but it strikes us that it was a matter for the jury.

The judgment of the court of common pleas is reversed and the record remitted with instructions that the judgment on the verdict be reinstated.