Farley v. Southeastern Pennsylvania Transp. Authority
Decision Date | 07 October 1980 |
Citation | 279 Pa.Super. 570,421 A.2d 346 |
Parties | Mamie FARLEY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Richard Harrow, Jr. Appeal of SEPTA. Richard HARROW, Jr. v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Henry T. Plonski, Appellants. |
Court | Pennsylvania Superior Court |
Norman M. Hegge, Jr., Philadelphia, for appellants.
Richard W. Berlinger, Philadelphia, for Mamie Farley, appellee.
Joseph Litt, Philadelphia, for Richard Harrow, Jr., appellee.
Before CERCONE, President Judge, and WATKINS and HOFFMAN, JJ.
These are appeals growing out of a trespass action in an intersectional vehicular accident. The cases were consolidated for trial. Richard Harrow, Jr., the plaintiff-appellee, sued the defendant, Henry T. Plonski, a bus driver and his employer, Southeastern Pennsylvania Transportation Authority (SEPTA), for injuries he sustained when his car was struck by a bus, owned by SEPTA and operated by Plonski. Richard Harrow, Jr., was brought in as an additional defendant on the basis that he contributed or was fully responsible for the accident, but the court below during trial entered a non-suit.
The jury returned verdicts in favor of Harrow in the amount of $10,000 and in favor of Farley in the amount of $25,000. Post-trial motions for judgment notwithstanding the verdict and for a new trial were denied and judgments were entered on the verdicts.
The facts briefly as stated by the court below are as follows:
Under these facts there is no merit in the motion for judgment notwithstanding the verdict and the court below properly denied it.
We will discuss the questions involved as to a new trial as follows:
A. The learned trial judge erred in refusing to charge the jury that Richard Harrow, Jr., had a continuing duty to look for approaching traffic as he entered the intersection regardless of any signals he allegedly received from the bus operator and his failure to do so was negligence.
Harrow testified that after he received the hand signal from Plonski he did not look back for other traffic on 23rd Street since he was looking at the bus and that was the only possible traffic. The bus was several car lengths away and it would serve no purpose if Plonski had given him the go ahead signal. SEPTA argues that its vehicle had the right of way but Harrow testified he had come to a complete stop and looked to his left and saw Plonski waving him ahead. The bus was being driven slowly and according to Harrow seemed to be slowing down to stop at Green Street so he drove into the intersection. He was a little more than halfway through the intersection when he was struck by the bus on the rear portion of the driver's side of his car. The damage to the bus was on its right front side.
Harrow had a right to assume that Plonski would not move into the intersection if the jury believed that he had been given the go-ahead signal. SEPTA argues that Plonski had the right of way and could not give it up. As the court below commented: Peters v. Shear, 351 Pa. 521, 526, 41 A.2d 556 (1945) where the court stated:
" 'A right-of-way' possessed by a motorist, is like a green light, not a command to proceed but a qualified permission to do so ... A motorist, regardless of his possessing a theoretical 'right-of-way' must exercise such due care as is required by the situation confronting him."
The court below properly refused this point for charge.
B. The Learned trial court erred in charging that even though the bus driver had the right of way he was required to have his vehicle under such control as to avoid the accident. This charge was proper. See Peters v. Shear, supra.
C. The Learned trial judge erred in permitting Harrow to testify regarding his alleged loss of vision over a three year period without requiring competent medical testimony to show that such an injury was the natural and probable consequence of the accident.
We quote with approval from the disposition made of this complaint by the court below as follows:
The most serious question raised in this appeal is the decision by the court below to permit the jury to determine whether a proper excuse had been made for the failure of the appellant to produce Plonski, the bus driver, and his instruction to the jury if they found that the explanation was not satisfactory an adverse inference could be drawn from his failure to testify.
We find this to be error.
"It is the general rule that where a party fails to produce evidence which is within its control and would naturally be in his interest to produce and he fails to give any satisfactory reason for the omission, the jury had a right to infer that the evidence, if produced, would have been unfavorable to him; in such case the inference is permissive not conclusive." Davidson v. Davidson, 191 Pa.Super. 305, 156 A.2d 549 (1959) (Emphasis-the writer's). See also, Bentivoglio v. Ralston, 447 Pa. 24, 27, 288 A.2d 745 (1972).
This is perhaps the most important piece of evidence in this case in determining negligence as the testimony of the plaintiff Harrow was that this witness, the bus driver, had signalled him to go ahead. This, with the failure of the witness to appear, remains unrebutted even though certain passengers in the bus testified that they did not see the signal. An examination of this record shows clearly the reason for his non-appearance and the determination of whether the reasons advanced were...
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