Opinion
October 9, 1935.
November 25, 1935.
Negligence — Automobiles — Contributory negligence — Obstruction in road — Visibility.
In an action for injuries sustained by plaintiff when he drove his automobile into a barrier of brick and dirt, surrounding an excavation in the center of a highway, a nonsuit was properly entered on the ground that plaintiff was contributorally negligent, where it appeared from the testimony of plaintiff's witnesses that in the exercise of ordinary care he could and should have seen the obstruction in ample time to have avoided running into it.
Argued October 9, 1935.
Before FRAZER, C. J., KEPHART, SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 124, March T., 1935, by plaintiff, from order of C. P. Allegheny Co., Oct. T., 1932, No. 1871, in case of Harry Mandell v. South Pittsburgh Water Company et al. Judgment affirmed.
Trespass for personal injuries and property damage. Before DITHRICH, J.
The opinion of the Supreme Court states the facts.
Compulsory nonsuit entered. Motion to take it off refused. Plaintiff appealed.
Error assigned was refusal of motion to take off nonsuit.
Benjamin L. Steinberg, with him Maurice A. Nernberg, for appellant.
Frank K. Willmann, of Willmann, Burns Sack, for appellee.
Plaintiff appeals from an order of the lower court refusing to take off a nonsuit. An examination of the testimony clearly sustains the court's action. The following excerpt from the opinion of the learned trial judge, which is fully warranted by the evidence, concisely and correctly states the circumstances under which the accident happened, and clearly convicts plaintiff of contributory negligence:
"Plaintiff, on a clear night, on a practically straight stretch of highway thirty-six feet in width with a slight uniform down-grade, drove his automobile into a barrier of brick and dirt, from two to two and one-half feet high and about four feet wide, barricading an excavation approximately in the center of the highway. He said he did not see the obstruction until it 'was about ten feet in front of me.' With the exercise of ordinary care he could and should have seen it in ample time to have avoided running into it. He testified that his driving vision ahead was restricted to fifty feet, but, if this be true, it was due to improper headlights, and to nothing else. It could not be due to the slight bend in the highway or the slight down-grade. A witness called by plaintiff testified he drove past the same point shortly before plaintiff, saw the obstruction when he was fifty feet away from it, and was able to avoid it by turning slightly to the left. In our judgment, plaintiff was clearly guilty of contributory negligence, and the judgment of compulsory nonsuit was properly entered."
Judgment affirmed.