Gilmore v. Marsh

• Decision Date: 14 March 1967
• Citation: 424 Pa. 361,227 A.2d 881
• Parties: Douglas GILMORE, Appellant, v. David R. MARSH.
• Court: Pennsylvania Supreme Court

Page 881

227 A.2d 881

424 Pa. 361

Douglas GILMORE, Appellant, v. David R. MARSH.

Supreme Court of Pennsylvania.

March 14, 1967.

[424 Pa. 362] Albert M. Hankin, Philadelphia, for appellant.

Gilbert P. High, High, Swartz, Roberts & Seidel, Norristown, for appellee.

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

OPINION

EAGEN, Justice.

Douglas Gilmore suffered serious injuries when a motorcycle he was operating collided with an automobile operated by David R. Marsh. This action by Gilmore for damages followed, and at trial the jury returned a verdict for Marsh. Gilmore appeals from the judgment entered on the verdict.

The collision occurred on a four-lane highway in front of a shopping center. Each lane was approximately eleven feet wide. Two lanes were for traffic traveling east and two for traffic traveling west. The east and west traffic lanes were completely separated by a medial strip which was generally about eighteen feet wide. However, in front of the shopping center, there were three separate breaks in the strip to permit traffic traveling east, or on the side of the highway opposite the shopping center, to make a left turn and enter the center. At these points the dividing strip narrowed, and an extra lane existed for a short distnce on that side of the highway from which traffic turning left into the center was required to negotiate the turn. Opposite each of these breaks in the strip was an entrance from the highway to the parking area on the shopping center's grounds.

Immediately before the collision the Marsh automobile which was traveling east on the highway, turned left and proceeded through one of the breaks in the dividing strip towards the entrance to the shopping center's parking area. While traveling across the lane abutting and nearest the center's entrance, it was hit at the rear fender by Gilmore's motorcycle which was traveling west.

The trial testimony was in sharp conflict as to important facts surrounding the occurrence. It need not be detailed here. It is sufficient to note, that under the evidence the jury could properly conclude that the negligence of either Marsh or Gilmore, or of both, caused the accident.

In his charge to the jury the trial court, inter alia, read certain sections of the Vehicle Code, Act of 1959, P.L. 58, as amended, 75 P.S. § 102, defining a highway intersection, and the rights and duties of motorists entering and proceeding through such intersections. He stated that it was not crystal clear whether the accident scene was within the term 'intersection' as defined and contemplated by the code, so he would leave that question to the jury to resolve. Gilmore contends that the accident did not happen at an 'intersection' and the court erred in making any reference thereto, and particularly in discussing the law as to the right of way at such points on the highway.

We have carefully reviewed the charge in its entirety and find no reversible error. It is fundamental that instructions to a jury must be considered as a whole and isolated portions thereof, even if erroneous, do not warrant a new trial unless they constitute basic, fundamental and prejudical error. See, Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960). This is not such a case.

We deem it unnecessary to decide whether an 'intersection' was involved herein, but...