Guy v. Lane , 345 Pa. 40 ( 1942 )

I dissent. Plaintiff was crossing Woodland Avenue at a street intersection. He looked before starting and proceeded only after the avenue was clear. When he reached the center of the avenue — the space between the two car tracks — an automobile coming from his right drew up and stopped in the west-bound or far track. Plaintiff testified that the driver of this automobile waved for him to proceed; accordingly he passed in front of it and, after doing so, had a remaining distance to go, from the west-bound track to the north curb, of 14 feet 8 inches. It is at this juncture that the question of his contributory negligence arises. It was, of course, his duty, as he came into the clear, to look to his right for approaching vehicles. Had he failed to do so and been struck as he emerged from in front of the standing automobile he would clearly have been guilty of contributory negligence. But he says he did look, and saw no vehicle approaching. He successfully negotiated the 14 feet 8 inches to a point within a foot of the curb, where he was struck by the right front of defendants' automobile. Defendants' driver admitted that his automobile was running "about two feet away from the curb."

The majority opinion finds that plaintiff was negligent because he did not see defendants' automobile. His failure to do so may be accounted for in either of two ways — defendants' automobile may have come out from in back of the standing automobile, or, what seems more likely from the evidence, it may have been so far up Woodland Avenue at the time plaintiff looked as not to have been an apparent source of danger and therefore did not attract plaintiff's attention. While he was going the 14 feet defendants' automobile would easily have traversed over 200 feet, which would mean that when plaintiff came out from in front of the standing automobile defendants' automobile would have been beyond Cobbs Creek Parkway, which was the next intersecting street. Surely a pedestrian, properly committed to a crossing, may, even though he did see an approaching vehicle in the next block more than 200 feet away, safely ignore it and assume that it would not come ahead and strike him while lawfully on the crossing. At least the question was for the jury. It seems to me that this case is so fairly governed by the recent case of Harrington v. Pugarelli, 344 Pa. 204, that any further discussion is unnecessary.

I would reverse the judgment n. o. v. and sustain the verdict.

Mr. Justice MAXEY and Mr. Justice PATTERSON Concur in this opinion.