Mellott v. Tuckey

Decision Date30 June 1944
Docket Number186
Citation350 Pa. 74,38 A.2d 40
PartiesMellott, Appellant, v. Tuckey
CourtPennsylvania Supreme Court

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Argued May 22, 1944.

Appeal, No. 186, Jan. T., 1944, from judgment of C.P., Adams Co., Nov. T., 1942, No. 86, in case of B. Rush Mellott, in his own right, and as guardian of Nelson E. Mellott, a minor v. Katherine Tuckey. Judgment affirmed.

Trespass for personal injuries.

The facts are stated in the opinion by SHEELY, P.J., of the court below, as follows:

The defendant having presented a point for binding instructions, and the jury having disagreed, the defendant filed a motion for judgment on the whole record under the authority of the Act of April 20, 1911, P.L. 70 (12 PS 684). Judgment can be entered for the defendant only if the evidence, viewed in the light most advantageous to the plaintiff, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in his favor: Shapiro v. Philadelphia Electric Company, 342 Pa. 416 (1941); Stabelli v. Somerton Building and Loan Association, 343 Pa. 460 (1942). We will state the facts in this manner.

The accident which gave rise to this action occurred on the morning of August 6, 1942, at the intersection of the Lincoln Highway and the Bonneauville-Granite Road. The Lincoln Highway, on which the defendant was proceeding eastwardly, is thirty feet wide and consists of two concrete strips ten feet wide with a "blacktop" center ten feet wide. The Granite Road, on which the plaintiff was proceeding southwardly, has a bituminous surface and is seventeen feet wide at its intersection with the north side of the Lincoln Highway. The day was bright and clear and the road was dry. There are no buildings in the northwest corner of the intersection and the land is practically level. There is a slight curve in the Lincoln Highway west of the intersection, but from a point ten feet north of tat highway there is an unobstructed view of the highway to the west for one thousand feet.

As the plaintiff approached the Lincoln Highway, which is marked as a "through traffic highway", he saw a pick-up truck approaching from the east and brought his car to a complete stop with the front bumper eleven feet, ten inches, north of the Lincoln Highway. After stopping he looked to the west and saw nothing on the highway. He waited until the pick-up truck was about one hundred and fifty feet west of the intersection, put his car in low gear, and looked to the east and to the west. He then had a view of the surface of the highway to the west for a distance of three hundred and sixty-five feet, his view being partly obstructed by the pick-up truck and two trees which were directly in his line of vision. Seeing no vehicle approaching, he entered the intersection without looking again in either direction until his "whole car was just about in the middle lane". At that point, with his car traveling seven miles per hour, he looked to the west and saw the defendant's car approaching at a distance of three hundred and twenty-five feet and at a speed of seventy miles per hour. He accelerated the speed of his car to ten miles per hour and watched the defendant's car approach for a distance of seventy-five feet, when he looked to the south and then again to the west. At that time the defendant's car was swerving to the south and he heard the sound of brakes.

Tire marks on the highway west of the intersection were about seventy-two feet long and led from the southern lane of traffic on the Lincoln Highway to the berm south of the road. At the time of the collision the two front wheels and the right rear wheel of the defendant's car were off the highway; the left rear wheel was either off the highway or near the southern edge. About half of the plaintiff's car was off the highway when it was struck near the right front by the left front corner of the defendant's car. The defendant's speed had been reduced to fifty miles per hour.

The question of the defendant's negligence was clearly for the jury. Her right of way on the through highway was qualified, and if she was operating her car at the speed testified by the plaintiff, and if she failed to apply her brakes until within seventy-two feet of the intersection when the Mellott car had already entered the intersection, there was ample evidence from which the jury could determine her negligence: Maio, Exrx., v. Fahs, 339 Pa. 180, 185.

The question of contributory negligence on the part of the plaintiff is more difficult. As to this the burden of proof was upon the defendant: Grimes v. Yellow Cab Company, 344 Pa. 298, and we cannot declare the plaintiff guilty of contributory negligence as a matter of law unless the evidence of his negligence is clear and unmistakable: Schildnecht v. Follmer Truck Company, 330 Pa. 550.

The plaintiff fulfilled his duty, under Section 1016 of the Motor Vehicle Code, of coming to a full stop before entering the intersection of the Lincoln Highway. He also had the duty, under Section 1014, of yielding the right of way to all vehicles approaching in either direction on such through highway, unless so far in advance that in the exercise of reasonable care and prudence he was justified in believing that he could cross ahead of the approaching vehicle without danger of collision: Steckler v. Luty, 316 Pa. 440. The duty of a driver entering an intersection has recently been restated in Freedman v. Ziccardi, 151 Pa.Super. 159, 30 A. 2, 172 (Jan. 28, 1943): "We have pointed out a number of times that it is the duty of the driver of a vehicle approaching a two way street to look first to his left and then to his right. That is because he first enters the lane in which traffic coming from his left is traveling. If he sees nothing approaching that would be likely to prove a source of danger to him, he may proceed, but as he nears the middle of the street, it is his duty to look to his right again before entering into the traffic lane coming from that direction." The rule has frequently been stated that it is the duty of the driver entering a through highway not only to look before entering, but to continue to look as he advances and to keep his car under such control that he can stop at any moment and avoid a collision: Dougherty v. Merchants Baking Company, 313 Pa. 557; Jaski v. West Park Daily Cleaners and Dyers, Inc., 334 Pa. 12; Riley v. McNaugher, 318 Pa. 217; Lehner v. Schellhase, 341 Pa. 260; Porreca v. North Cleaners and Dyers Inc., 146 Pa.Super. 504.

The plaintiff admittedly did not look to the west, or his right from the time he started onto the highway until his whole car was about the middle lane of the highway. The middle lane is ten feet wide so that the front of his car was then in, or just at, the southern lane of traffic, and had traversed two thirds of the highway. Under his testimony he could have stopped within a distance of five feet. That would have placed the front of his car in the middle, or south of the middle, of the southern lane of traffic and directly in the path of eastbound traffic. An observation to his right at that point could do him no good as he was then in a position of danger. It has frequently been stated that the purpose of looking is to observe traffic conditions, and it has been held that looking in "a more or less general way does not fulfill this requirement of duty": Stevens v. Allcutt, 320 Pa. 585 (1936). In Lehner v. Schellhase, 341 Pa. 260 (1941), the plaintiff stopped at the curb line where he had a view of two...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT