Fowler v. Smith

¶1Dissenting Opinion by

¶2I respectfully dissent because I feel that the court below correctly analyzed the facts and properly applied our case law in granting judgment n.o.v.

¶3To the facts as stated by the majority I would add the following: The collision occurred at about 1:45 p.m. *250on a clear and sunny day. The roadway was dry. Appellant testified that appellee was moving at approximately 20 miles per hour after the impact.

¶4A jury returned a verdict for the appellant. Appellee moved for judgment n.o.v. on the ground that appellant was guilty of contributory negligence as a matter of law. The court en banc granted appellee’s motion. It held that the circumstances of the case, including the fact that appellant did not see appellee prior to the collision, were positive proof that he could not have looked before entering the intersection and made him automatically contributorily negligent in the absence of some reasonable explanation. The court found that there was no reasonable explanation why appellant did not see appellee.

¶5As argued by appellant a motorist with a green light in his favor cannot be held to the same high degree of care as a driver at an unregulated intersection. Jordan v. Kennedy, 180 Pa. Superior Ct. 593, 119 A. 2d 679 (1956), quoted with approval in Smith v. United News Co., 413 Pa. 243, 196 A. 2d 302 (1964). If in fact appellant looked to his left after the light changed in his favor when he was a scant ten feet from the intersection, could see 150 feet and saw no one coming, he had a right to assume that any driver approaching outside his vision would stop for the red light and he could not be declared negligent as a matter of law. Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A. 2d 414 (1962). However, a driver who fails to look for traffic on an intersecting street before he enters an intersection convicts himself of contributory negligence even though he has a traffic signal in his favor. Lewis v. Quinn, 376 Pa. 109, 101 A. 2d 382 (1954). The case thus turns on whether or not the appellant looked to his left after the light turned green.

¶6In the usual case such a factual determination would be for the jury. The court below, in determin*251ing that appellant did not look, held that the facts in the case showed that had appellant looked he would have seen appellee. We held such a determination by the court to he proper in an intersection case and granted judgment n.o.v. in Clee v. Brinks, Inc., 135 Pa. Superior Ct. 345, 5 A. 2d 387 (1939). In that case plaintiff could see 100 feet down the intersecting avenue from whence defendant came. We stated the rule as follows: “The law will not permit a driver to say that he looked where he had an unobstructed view without seeing what must have been within the range of his vision.” 135 Pa. Superior Ct. at 354, 5 A. 2d at 392. In Sargeant v. Ayers, 358 Pa. 393, 398, 57 A. 2d 881, 883 (1948), a case sustaining a compulsory non-suit where the physical circumstances made it evident that a good view of approaching vehicles was available to both drivers, the Supreme Court said, “The plaintiffs admitted failure to see the approaching truck is explainable only on the ground that he was inattentive; and inattention in such a situation is negligence.” See also Smith v. United News Co., supra at 249, 196 A. 2d at 306.

¶7In considering the testimony in the light most favorable to the appellant, the court was not required to ignore the limiting evidence of appellant’s own witnesses or the undisputed physical facts. Litwinowitch v. Oriental Nav. Co., 311 Pa. 257, 166 A. 911 (1933). A witness called by appellant had followed appellee for a mile prior to the collision and testified that appellee was driving “extremely slow” and continued at the same speed into the intersection. Appellant himself testified that he could see 150 feet to his left as the light changed in his favor. Appellee came down Monroeville Road from appellant’s left. Only one-half of appellant’s car had entered the intersection when he was hit. Appellant testified that he did not see ap*252pellee at any time prior to the collision.1 He further said that appellee was going approximately 20 miles an hour after the impact. In my opinion these facts and circumstances demonstrate that appellant must have had a view of appellee’s approaching automobile had he looked when the light turned green in his favor. I am satisfied that appellant either did not look or was inattentive when the light turned green and convicted himself of contributory negligence as a matter of law. I would affirm the court below.