Fow v. Adams Express Co. , 1917 Pa. Super. LEXIS 124 ( 1917 )

Opinion by

Orlady, P. J.,

The accident in this case occurred at the crossing of 12th and Arch streets, Philadelphia, when the plaintiff’s Ford automobile collided with a truck of the defendant company. The plaintiff was proceeding west on Arch street at a speed of about six miles an hour. The defendant’s truck was coming down Twelfth street at a much greater speed, several witnesses stating it to be twenty miles an hour. The testimony was conflicting and the disputed facts were fairly left to the jury by the trial judge to determine the cause of the collision, saying, “It was the duty of the plaintiff to look for' any approaching vehicle as he neared the intersection of these two streets. If he saw or should have seen an approaching automobile, and such was his duty, he should not have approached the crossing in near proximity to the approaching automobile. The same duty existed on the part of the Adams Express Company’s driver.” It is the duty of one approaching the crossing of a street intersection to have his vehicle tinder control; and to observe what is or may be approaching on the other street. And where another vehicle is first at the crossing, to give it an opportunity to clear the same; and to use due care to avoid a collision: McClung v. Penna. Taximeter Cab Co., 252 Pa. 478. The parties had equal rights, and the first at the crossing had the primary right to proceed. This is so even if the plaintiff had seen the defendant's automobile approaching, providing it was not so near that a collision would naturally be expected to follow. The plaintiff was under no duty to anticipate the negligent act of the defendant. A person lawfully in the public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid' injury, and the failure to anticipate the omission of such care does not render him negligent: Brown v. Chambers, 65 Pa. Superior Ct. 373. Negligence must be determined by all the circumstances of the case, and this was purely a question of fact fairly submitted to the jury: Frankel v. Norris, 252 Pa. 14; Gosling v. Gross, 66 Pa. Superior Ct. 304.

After full consideration the court refused to enter judgment non obstante veredicto, in which conclusion we concur. See Tustin v. Hawes, 62 Pa. Superior Ct. 205; Hoover v. Reichard, 63 Pa. Superior Ct. 517.

The judgment is affirmed.