Opinion
January 21, 1935.
February 4, 1935.
Negligence — Automobiles — Crossing — Failure to see car proceeding on wrong side of street.
In an action of trespass for injuries sustained by plaintiff when the car in which he was riding as a passenger engaged with the driver in a common enterprise, was struck at a street intersection by defendant's car, whether plaintiff's driver was contributorily negligent in failing to see defendant's car, proceeding on the wrong side of the center line of the intersecting street, until it was within four feet of him and the accident could not be avoided, was held to be a question of fact for the jury.
Argued January 21, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 376, Jan. T., 1934, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1932, No. 461, in case of Norman P. Hurd v. Gustave Dietz. Judgment affirmed.
Trespass for personal injuries. Before McCANN, P. J., specially presiding.
Verdict for plaintiff. Motion for judgment n. o. v.
The facts are stated in the opinion of the lower court, LAMBERTON, J., as follows:
Plaintiff brought suit against defendant to recover damages for injuries received in an automobile accident, which occurred at the intersection of Seventh Street and Hunting Park Avenue, in the City of Philadelphia, on November 5, 1932. The jury brought in a verdict in favor of plaintiff in the sum of $3,850. Defendant having asked for binding instructions now asks us to enter judgment non obstante veredicto.
The plaintiff's evidence (which incidentally was not contradicted because defendant introduced no testimony) shows the following facts:
Plaintiff was the owner of an automobile. On the day in question, this automobile was being driven by Benjamin R. McComas, with plaintiff sitting beside him in the front seat. Plaintiff and McComas were engaged in the same employment, and at the time of the accident were on business connected with their employment.
Seventh Street runs north and south, and Hunting Park Avenue runs east and west, the two intersecting at right angles. Seventh Street is twenty-six feet from curb to curb and Hunting Park Avenue is sixty feet from curb to curb, with a white line in the center to divide eastbound and westbound traffic. At about 5:10 p. m. on the day in question, when it was dusk but not quite dark, plaintiff's automobile, driven by McComas, was proceeding southwardly on Seventh Street. When it reached Hunting Park Avenue, McComas looked to his left eastwardly, and seeing automobiles coming from that direction he stopped. Two westbound cars pulled up to the intersection and stopped side by side, the one a little to the rear of the other. The driver of one motioned to McComas to cross, and McComas proceeded in front of these cars at a speed of eight or ten miles an hour. Meanwhile, he looked to his right, westward, and saw no traffic approaching. As he reached the center of the street, he looked at the far corners for pedestrians, and when the rear of his car was four or five feet past the white line, he was struck by the automobile of defendant proceeding westwardly ten feet to the south of the center line of Hunting Park Avenue. Neither plaintiff nor McComas saw defendant's automobile until it was within four feet of them and the accident could not be avoided.
In his brief counsel for defendant says: "The defendant having filed a point for binding instructions, now moves for judgment non obstante veredicto, and assigns but one ground therefor, namely; the contributory negligence of the plaintiff." Counsel for defendant argues that, since plaintiff and McComas were engaged in a common enterprise, the negligence of McComas should be imputed to plaintiff. With this we agree.
Counsel for defendant then argues, on the authority of Byrne v. Schultz, 306 Pa. 427, that the car having been struck by an automobile which McComas did not see and which he should have seen had he looked, McComas was guilty of contributory negligence as a matter of law. There would be much to be said in favor of this contention had defendant been driving on the right-hand side of the street, though even then the matter might be debatable on the theory that McComas' view of defendant's car might have been cut off by the other westbound automobiles stopped at the intersection. Counsel for defendant, however, has apparently lost sight of the fact that this accident did not happen on the northerly half of Hunting Park Avenue, where McComas should have anticipated the presence of westbound vehicles, but on the southerly half of Hunting Park Avenue, where the traffic to be anticipated would be eastbound. A man driving an automobile cannot look in all directions at once. At a street intersection he is bound to be on the alert for vehicular traffic in every direction and for pedestrians, but in making such a crossing as this, his thought during the first half of the crossing would naturally be directed toward traffic from the east, and his thought, after crossing the middle of the street, would naturally be directed toward traffic from the west.
On the basis of the record before us, defendant was guilty of a grossly negligent act. He drove his automobile well over on the wrong side of the street and crashed into an automobile which must have been in his plain sight while it went slowly a distance of at least forty feet. With defendant driving on the wrong side of the street and with McComas naturally more concerned with traffic from the other direction, we cannot say that McComas was guilty of negligence as a matter of law in not seeing defendant's car sooner. For all that we know, defendant's car may have suddenly swerved from the right side of the street to the wrong side of the street to avoid the automobiles which had stopped to let McComas pass. The question of plaintiff's contributory negligence was clearly for the jury and not for the court.
And now, to wit, this 28th day of June, 1934, defendant's motion for judgment non obstante veredicto is overruled.
Judgment for plaintiff. Defendant appealed.
Error assigned, inter alia, was refusal of judgment n. o. v., quoting record.
J. Webster Jones, for appellant. Daniel G. Murphy, for appellee, was not heard.
The judgment is affirmed on the opinion of Judge LAMBERTON.