Burish v. Digon

• Decision Date: 12 January 1965
• Citation: 416 Pa. 486,206 A.2d 497
• Parties: George BURISH, Appellant, v. Stella DIGON. Stella DIGON v. George BURISH, Appellant.
• Court: Pennsylvania Supreme Court

Page 497

206 A.2d 497

416 Pa. 486

George BURISH, Appellant, v. Stella DIGON.

Stella DIGON v. George BURISH, Appellant.

Supreme Court of Pennsylvania.

Jan. 12, 1965.

Rehearing Denied Feb. 15, 1965.

Richard DiSalle, Canonsburg, for appellant.

William C. Porter, Washington, for appellee in No. 181.

George K. Hanna, Washington, for appellee in No. 182.

Before BELL, C. J., and JONES, COHEN, EAGEN, O'BRIEN, MUSMANNO and ROBERTS, JJ.

EAGEN, Justice.

In the late afternoon, an automobile operated by Stella Digon collided with an automobile operated by George Burish at a rural road intersection. At the time involved, Digon was traveling east on one of the intersecting roads and Burish was traveling south, approaching from Digon's left, on the other. Both drivers were seriously injured. Cross actions for damages were instituted and later consolidated for trial. The jury found in favor of Digon in both actions, and in the one wherein she was plaintiff awarded her substantial damages. Post trial motions were dismissed and from the judgments entered upon the verdict, Burish appeals.

Appellant first contends that Digon was guilty of contributory negligence as a matter of law in that she did not continue to look for approaching traffic as she proceeded through the intersection. That the evidence warranted a conclusion that Burish was negligent is not contested. It justifies a finding that he saw the other vehicle for sufficient time beforehand to bring his car to a stop, or through other reasonable action to avoid the collision.

The intersection involved was not controlled by traffic lights or stop signs at the time of the accident, although, under the evidence, it is clear that the road upon which Burish was traveling was considered a through highway. Both roads were of macadam surface construction and each approximated 20 feet in width.

Digon's testimony discloses that she brought her automobile to a complete stop approximately five feet from the intersection; that she then first looked to her left, immediately following to her right, and finally to her left again; that she had an unobstructed view to her left of approximately 150 feet; that seeing no traffic approaching in either direction on the intersecting road, she proceeded slowly in low gear at a speed of ten to fifteen miles an hour across the intersection; that she considered the slow rate of speed necessary because of a depression in the road; that after her automobile traveled approximately twelve feet across the intersecting road, the collision occurred with the left front fender of her vehicle coming into contact with the right side of the Burish automobile; that she did not see the latter vehicle until the moment of collision.

It is beyond argument that a motorist at an intersection is always required to be alert, observe conditions before entering therein, and to continue to look as he proceeds through: Smith v. United News Co., 413 Pa. 243, 196 A.2d 302 (1964). It is equally well established that contributory negligence should not be declared as a matter of law, unless the conclusion thereof is inescapable: Endfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960). This is not such a case.

Digon looked twice to her left before entering the intersection. As of that moment, Burish was not within her view. She, therefore, had the right to proceed. Having done so, what could or should she have done, as a reasonably prudent person, to avoid the collision? Is it an inescapable conclusion that she was guilty of negligence, which contributed to the accident, because she failed to swivel her head back and forth while traveling a very short distance? We think not. It may be asked, where did Burish come from if she did not see him beforehand. One must remember that her view upon entering the intersection was limited to approximately 150 feet and modern automobiles, traveling even at a moderate rate of speed, traverse this distance in seconds. According to Burish's own testimony, he was traveling 45 miles an hour as he approached the intersection and, admittedly, he saw the other vehicle when 50 feet away. Under the circumstances, the issue of negligence, as to both drivers, was for the jury.

At trial, Burish was represented by two different attorneys, one in his capacity as plaintiff, and another in his role as defendant. After the evidence was closed, Digon's attorney argued her contentions, both as plaintiff and as defendant, to the jury. The attorney who represented Burish as plaintiff then argued his side of the case fully to the jury. The attorney who represented Burish as defendant then requested permission also to argue to the jury. The court denied the request, and this ruling is assigned as an error requiring the grant of a new trial.

Under Rule 223 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix, local courts are empowered to make and enforce rules regulating the number and length of addresses to the jury. Rule L 223 of the court of the county involved prescribes that, 'The trial Judge, in his discretion, may limit the closing address to one attorney for each party or group of parties.' Further, it has long been established that the addresses of counsel to the jury are especially subject to the regulatory powers of the trial judge. See, 2 Anderson, Pennsylvania Civil Practice, § 223.1 (1960); 38 P.L.E. Trial § 103 (1961); Laub, Pa. Trial Guide § 42 (1959); and, Goldman v. Lichetnstul, 118 Pa.Super. 124, 179 A. 870 (1935). So long as no clear abuse of discretion exists or rights of due process are violated, an appellate court should not interfere. Under the circumstances presented, none such appear.

The charge of the trial court was complete and unbiased, and it is not here questioned. The position of the parties, both as plaintiff and defendant, was made...