Citation Numbers: 176 A. 74, 115 Pa. Super. 558
Judges: OPINION BY STADTFELD, J., January 4, 1935:
Filed Date: 10/17/1934
Status: Precedential
Modified Date: 1/13/2023
Argued October 17, 1934. This was an action of trespass for the recovery of damages for personal injuries and damage to an automobile as a result of a right angle collision at the intersection of Powelton Avenue and 40th Street in the City of Philadelphia.
On July 4, 1933, plaintiff was operating his automobile eastwardly on Powelton Avenue at about 3:15 in the morning. A motor truck, owned by the defendant, was being driven northwardly on 40th Street. Powelton Avenue extends east and west and is sixty feet wide; 40th Street, extending north and south, is 30 feet wide. The case was tried before WALSH, J., without a jury, in the municipal court. *Page 560
The testimony of plaintiff was in part as follows:
As he approached the intersection, he slowed down to a speed of 5 or 6 miles an hour and when his car reached a point between the first house line and curb, he looked to his right and saw defendant's truck, with dim lights, 100 feet away, coming north at 25 or 30 miles an hour. He then continued to cross 40th Street, and as he reached the center of the intersection, he looked again and saw defendant's truck 40 feet away coming at the same speed; he kept on and when the front of his car was about 5 feet past the east or far curb line of 40th Street, having crossed the 40th Street car track his car was hit in the rear on the right-hand side by defendant's truck and almost completely turned around close to the north curb; at the time of the collision he was going about 15 or 16 miles an hour. Plaintiff was corroborated by a Mr. Moore who was standing near the southwest corner of 40th Street and Powelton Avenue at the time of the accident.
At the conclusion of the testimony, defendant asked for finding in its favor. The trial judge found in favor of plaintiff. Motion ex parte defendant for judgment n.o.v. was overruled in an opinion by WALSH, J. The assignment of error is to the refusal to enter judgment in favor of defendant. In the consideration of this motion plaintiff is entitled to every inference in his favor from the testimony.
The trial judge in the opinion filed states that: ". . . . . . having carefully observed the conduct and demeanor of the several witnesses during this line of testifying and carefully weighed the possibility and probability of their testimony, concluded, free from caprice, that the plaintiff had made out a case, and consequently found, as a question of fact, in favor of the plaintiff."
The finding by a trial judge, sitting without a jury, if sustained by legally competent testimony, is entitled *Page 561 to the same weight as the verdict of a jury.
The sole question in the case was whether or not plaintiff was guilty of contributory negligence. Under the testimony it would have been error for the court to have declared, as a matter of law, that plaintiff was contributorily negligent. In this case it was the duty of the trial judge to pass upon the question, and we are of the opinion that his finding is amply sustained by the evidence.
In Keystone Lead Co. v. Frechie,
In Barton v. Franklin,
The assignments of error are overruled and judgment affirmed.