Hitz v. Stouffer , 207 Pa. Super. 55 ( 1965 )

Opinion by

Ervin, P. J.,

We have for consideration two separate trespass cases which were consolidated for trial. In the first case Marlin H. Hitz and Dolores X. Hitz instituted an action against Jean M. Stouffer for the recovery of property damages to the Hitz car. In the second case, Clair J. Stouffer and Jean M. Stouffer instituted an action against Paul E. Hershey, individually and trading as Hershey Brothers Garage, and James W. Pearson, for the recovery of property damages to the Stouffer car.

On the afternoon of June 27, 1961, a clear, dry day, Jean Stouffer was operating an automobile, owned by her husband and herself, in an eastwardly direction on East Birch Street, at or about its intersection with South Green Street, in Palmyra, Lebanon County, Pennsylvania. At the same time the automobile owned by Marlin H. Hitz and Dolores X. Hitz was being operated by a bailee, James W. Pearson, an employe of Paul E. Hershey, in a northwardly direction on South Green Street at or about the aforesaid intersection. The intersection was not controlled by any traffic signs or signals and the visibility for the operators of both vehicles was good. Both streets are forty feet wide: The Hitz vehicle was approaching the intersection from Mrs. Stouffer’s right.

Mrs. Stouffer testified as follows on direct examination: “Q. I interrupted you. Then what happened? What did you do and what did you observe and what happened? A. As I proceeded toward the intersection I looked to see if there was any traffic on South Green Street and when I looked I saw that there was a car approaching from the south going north on Green Street. I would say at the time that I saw the car he was about half the distance between Birch and Elm Street. Q. Can you estimate what the distance was? How far away was he from the intersection, if you can estimate? A. I would say at least 250 feet. Q. All right, now go ahead. A. As I said, I saw the car to my right and, as I said, he was at least 250 feet away. And so I proceeded into the intersection on my way across. Q. How fast were you driving? Can you fix your speed in any way from the time you got to the driveway until the time you entered the intersection? If it varied, give the varying speeds at which you drove. A. I don’t believe it varied and I believe I was driving about fifteen miles an hour. Q. Will you state whether or not you were able to observe his speed when you saw him? A. No, I was not able to observe his speed. Q. What happened then with respect to the collision between the two cars? A. As I was about three quarters of the way through the intersection I heard the screech of brakes and I saw the car just as he was off the right side of my car just before impact. ... Q. How far were you from the west curbline of Green Street when you observed this car at the distance at which you testified? A. I would say about twenty to twenty-five feet. Q. Do you know whether the intersection was controlled, as we use the term? A. The intersection was not controlled.” On cross-examination Mrs. Stouffer testified as follows: “Q. When you were twenty to twenty-five feet from the intersection did you look again to observe Mr. Pearson? A. No. He was entirely too far away.” She further testified: “Q. If you saw Mr. Pearson when you were twenty to twenty-five feet away from the intersection, as you now say, when did you next see him, if you did? A. The next time I saw him was just before impact. Q. So as you entered the intersection itself you didn’t look to your right to see if Mr. Pearson, was coming; is that right? A. No. I had discarded him from my realm of danger at that point.”

After the trial the jury found in favor of Jean M. Stouffer in the first case and in favor of Glair J. Stouffer and Jean M. Stouffer in the second case in the amount of $591.11. Motions for judgment n.o.y. and for new trials were filed in both cases and were denied. Judgments were entered on the verdicts. Hence these appeals.

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. If another car is approaching in the right lane, the driver should stop unless, in the exercise of care and prudence, he is reasonably justified in believing he can cross ahead of it without danger of a collision: Grande v. Wooleyhan Transportation Co., 353 Pa. 535, 538, 539, 46 A. 2d 241; Merkel v. Janiszewski, 180 Pa. Superior Ct. 71, 73, 117 A. 2d 795; and Freedman v. Ziccardi, 151 Pa. Superior Ct. 159, 162, 30 A. 2d 172.

Under the evidence taken most favorably to Mrs. Stouffer, there can be no doubt that after looking to the right at a point twenty to twenty-five feet from the intersection and seeing a car approaching from that direction, she failed to look to her right again at the approaching vehicle until the point of collision. She admitted this fact both on direct and cross-examination. She also admitted that she did not know how fast the other car was going. Had she looked as required she undoubtedly would have seen how close the other car was to her and she could have stopped before entering the northbound lane, thus avoiding the collision. Under these circumstances, she was contributorily negligent as a matter of law and we cannot place our stamp of approval upon such conduct.

The judgment in favor of Clair J. Stouffer and Jean M. Stouffer must be reversed and judgment n.o.v. must be entered in favor of Paul E. Hershey, individually and t/a Hershey Brothers Garage, and James W. Pearson.

Since Jean M. Stouffer, who was negligent as a matter of law, was the sole defendant in the first case, and since any negligence of the bailee (Pearson) in the second case could not be imputed to the bailor (Hitz) and since the damages to the Hitz car had been stipulated, it is hereby directed that judgment be entered by the court below in favor of Marlin H. Hitz and Dolores 1C Hitz, plaintiffs, appellants, and against Jean M. Stouffer in the amount of $526.10. See D. M. Bare Paper Co. v. Steward, 205 Pa. Superior Ct. 286, 208 A. 2d 890.