Katz v. Montague

110 A.2d 178, 380 Pa. 273, 1955 Pa. LEXIS 565

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1955
• Docket: Appeal, 313
• Status: Published

Opinions

Opinion by

Mr. Justice Musmanno,

On February 25, 1952, in Philadelphia, the plaintiff Betty Katz was a passenger in an automobile being operated by Abraham Keller on Norris Street in a westwardly direction. The defendant Earlie Montague was driving a car in a southwardly direction on 25th Street which intersects Norris Street. In these modern times when car meets car at an intersection, a legal tug of war follows in some court of the Commonwealth. Betty Katz thus sued Earlie Montague for the injuries she sustained when the Keller car and the Montague car collided with each other at 25th and Norris Streets. Upon being made a defendant, Montague brought in Abraham Keller as an additional defendant. To complicate the story but not the Iuav, Betty Katz married the additional defendant Keller, so that she found herself suing her own husband, together with Earlie Montague, The jury returned a verdict in favor of Mrs. Keller against her husband but exonerated Montague. Keller asked for a judgment n.o.v. against his wife, and his wife asked for a new trial against her husband and against Montague, asserting doubly that the verdict was inadequate and that it was against the weight of the evidence. The lower court granted the plaintiff’s motion for a new trial on the ground that the verdict was against the weight of the evidence, denied Keller’s motion for judgment n.o.v. and then later awarded Keller a neAV trial.

Despite the marital involvement and interlacing netAVork of post-trial motions, only one question presents itself before this Court, and it is this: Was the lower court in error in ordering a new trial? In Bellettiere v. Philadelphia, 367 Pa. 638, we said that “ ‘whenever the reason or reasons assigned involve the exercise of discretion, the order of the trial court will not be interfered with unless a palpable abuse of power appears.’ ” A study of the record here certainly negatives any assumption that the lower court palpably abused its power. We also said in the Bellettiere case that: “ ‘One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court’s conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere.’ ”

With those criteria before us, we see no reason for interfering with the decision of the Trial Court that justice requires the factual issues in this case be tried before another jury. The evidence would easily suggest that Montague was not without fault in the accident which visited serious injuries on Betty Katz. Montague testified that as he proceeded southwardly on 25th Street and across Norris Street, he looked to his left (which is the direction in which the Keller car was proceeding), but that he did not see the Keller car because a truck moving northwardly on 25th Street concealed the Keller car from his view. He then said that as the intervening truck passed, the Keller car appeared before him at a distance of only 6 feet and that he then crashed into the right side of the Keller car. This testimony would justify any jury in convicting Montague of negligence out of his own mouth. The object of requiring a motorist to look to his left and right as he enters and proceeds through an intersection is to see what may be moving into his path.

* One does not meet the requirement of the law by looking and then advancing in spite of the fact that his glance encounters a barrier which shuts off the view of what may be before him. If the truck had been a smoke screen, Montague could not be heard to say that he satisfied the requirement of looking. Looking includes seeing, not merely directing one’s eyes in a certain direction. When the truck cut off Montague’s perspective, it was his duty to stop or proceed at such a snail’s pace that he could stop in a gasp, should something appear from behind the truck.

In a statement given to a police officer after the accident, Montague said that he proceeded through the intersection at 20 miles per hour, which, in view of the curtaining concealment presented by the truck, was obviously a speed not in keeping with the due care called for by the circumstances.

At another point in his testimony Montague stated that he stopped at the intersection and looked to his left but he did not see the Keller car. Since the Keller car was obviously there, Montague either did not look or closed the eyes of caution to what he saAV. In either event his words bespoke a negligence Avkich the lower court felt it could not ignore.

The order of the court below ordering a new trial in favor of the plaintiff and the additional defendant is affirmed.

In Stevens v. Allcutt, 320 Pa. 585, this Court affirmed a judgment n.o.v. because the plaintiff had said that as he went into the intersection he “looked in a more or less general way to both sides.” Mr. Justice Schaefer, speaking for the Court, said: “This sort of looking does not fulfill the requirement of the law. The statement indicates that the looking was vague, not careful, attentive or searching a mere cursory glance, not calculated to bring home knowledge of the traffic conditions in the intersection, as is shown by the fact that plaintiff when about two-thirds across drove directly into the path of the truck which he did not see until it struck him.”