Holton v. Gibson

166 A.2d 4, 402 Pa. 37, 1960 Pa. LEXIS 393
CourtSupreme Court of Pennsylvania
DecidedDecember 1, 1960
DocketAppeal, 156
StatusPublished
Cited by29 cases

This text of 166 A.2d 4 (Holton v. Gibson) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holton v. Gibson, 166 A.2d 4, 402 Pa. 37, 1960 Pa. LEXIS 393 (Pa. 1960).

Opinions

Opinion by

Mr. Justice Eagen,

This appeal is from the entry of judgment after the refusal of the court below to grant defendant’s motions for a new trial and for judgment non obstante veredicto in an action of trespass wherein the jury returned a verdict of $24,416.75 in favor of plaintiffs. Appellees are husband and wife, the former alone having sustained personal injury and the latter joined solely because of her rights of partial ownership in the damaged vehicle involved.

At approximately eight o’clock in the evening of October 22, 1954, the husband-plaintiff and the defendant were driving automobiles eastwardly and westwardly, respectively, along Smock Memorial Highway (U. S. Route 322) in Vernon Township, Crawford County, Pennsylvania. Route 322 at its intersection ■with Mercer Pike is a straight, four-lane, slightly graded highway and thoroughfare, the eastbound and westbound lanes of which are separated by a concrete medial strip approximately two feet in width. Weather conditions then prevailing were good; the road was dry and the night, though dark, was clear. At the time in question, Route 322 was uncontrolled at this junction by the traffic signals appearing there at the time of trial. Mercer Pike, however, was governed by stop signs at this intersection.

According to his testimony, Mr. Holton, hereinafter referred to as appellee, then 57 years of age, ap[40]*40proaclied the intersection in the northernmost of the eastbonnd lanes, adjacent to and immediately south of the aforementioned medial strip. He applied his automatic turn signals to indicate ah intended left turn to the north and stopped his automobile just west of the end of the medial strip to his left. He had clear vision of over 1000 feet eastward. Before commencing to execute the turn, he waited until two westbound vehicles had cleared the intersection, after which time and while seeing the headlights of defendant’s car some 600 to 800 feet east of the crossing, he entered the southernmost of the westbound lanes at a speed of three to five miles per hour in low gear. When Ms car reached the approximate center of the westbound lanes and was astraddle their division line, he looked to his right and then observed defendant’s car some two hundred feet east of the intersection approaching at what he described as an increased speed. The collision occurred immediately after the front end of his car had passed the line at which Mercer Pike meets ftoute 322. The left front section of defendant’s car and the right front portion of appellee’s automobile had come into violent contact. According to the defendant’s testimony, as he approached the intersection three cars were travelling in the opposite direction in the eastbound lanes. When defendant was within one hundred feet of the intersection, one of these cars suddenly and without warning departed from its lane of traffic and made a “sweeping” left turn, swinging across the highway into the pathway of his automobile. He testified that he ceased accelerating at a point approximately one hundred feet east of the intersection and that, when about twenty-five feet from it, he applied his brakes. In this connection, he testified on cross-examination rather significantly as follows : “Q. The only reason you made no attempt to stop [41]*41until you reached the point twenty-five feet from the intersection was because you didn’t think it was up to you to do it, is that right? A. That’s right. It’s a through highway.” In an effort to avoid collision, defendant swerved to his right. He had at all times been in the northernmost of the two westbound lanes. Appellant fixed at from forty to forty-five miles per hour the speed at which he had been travelling before becoming aware of appellee’s intent to turn north. Behind him, but separated by the vehicle of an unknown motorist, was the automobile of one Mr. Britton who, when called, testified that he had been proceeding at approximately forty to forty-five miles per hour and that the distances between the three cars seemed to remain constant. Appellant’s insistence that this testimony is corroborative of his own speed is somewhat impaired by the following testimony of Britton, given on cross-examination: “Q. And you weren’t paying any attention to the speed of the lead (Gibson) car at the time that you saw the lights of this (appellee’s) car turning left, either, were you? A. No, but I had been prior to that. Q. I said at that time you weren’t? A. No. Q. You have already said you don’t know whether it increased or decreased its speed after it went around the curve. You said that, too, didn’t you? A. Yes.”

Several alleged trial errors are assigned in support of the motion for new trial. It is strenuously argued that the verdict was against the weight of the evidence and that the amount thereof was excessive; that plaintiff should not have been allowed to testify that when he saw defendant’s car approximately two hundred feet away it was then approaching at an increased speed; that, because plaintiff failed to prove an actual diminution in wages subsequent to his return to work and resulting from the accident, the court should not have [42]*42instructed the jury that it could award a sum for loss of earning capacity; that the jury should have been instructed to disregard an argument made by appellee’s counsel in his summation and based on an assumption of speed for which there was no direct support in the testimony; that the jury could not have given the case due deliberation because “it was out for less than an hour”; and, that appellee’s failure to institute his suit until three days before the running of the Statute of Limitations is consistent only with an inability of plaintiff to recall, even at the time of trial, the various circumstances surrounding the happening of the accident.

After a careful consideration of all of the above listed assignments of error, we are convinced that they are without merit. The sole ground advanced in support of appellant’s motion for judgment n.o.v. is the contention that appellee was contributorily negligent as a matter of law.

Needless to say, in considering a motion for entry of judgment against the verdict winner, the latter is entitled to the benefit of every favorable fact and inference fairly deducible therefrom: Smith et al. v. Pachter, 342 Pa. 21, 19 A. 2d 85 (1941) ; Thompson v. Gorman, 366 Pa. 242, 77 A. 2d 413 (1951). Also, contributory negligence as a matter of law should be declared only in a very clear case and where the only reasonable inference of the evidence in plaintiff’s own case shows want of due care: Lear v. Shirk’s Motor Express Corp., 397 Pa. 144, 152 A. 2d 883 (1959). Under these standards, the question of contributory negligence in this case was for the jury. Appellee was not bound to anticipate the negligence of the defendant: Richards et ux. v. Warner Company et al., 311 Pa. 50, 166 Atl. 496 (1933). In Lookatch v. Robinson, 318 Pa. 545, 179 Atl. 66 (1935) we held that a driver [43]*43of an automobile was not guilty of contributory negligence as a matter of law merely because he started, at right angles, across a thirty-five foot wide highway without waiting for an automobile, then three hundred feet aAvay, to pass in front of him, there being no other ATehicle between the two cars.

Counsel for appellant vigorously contends that appellee, while in the middle of the westbound lanes and when defendant was, according to appellee’s testimony, some two hundred feet east of the intersection, should have stopped, astraddle the division line of the two westbound lanes.

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Bluebook (online)
166 A.2d 4, 402 Pa. 37, 1960 Pa. LEXIS 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holton-v-gibson-pa-1960.