Opinion
December 8, 1931.
March 5, 1932.
Negligence — Automobile — Collision — Traffic signal light — Right-of-way — Trial C.P. — Charge of court — Case for jury — Section 1026 of the Motor Vehicle Code of 1929, P.L. 905.
In an action of trespass by a passenger to recover damages for injuries sustained in a collision with the defendant's automobile at a street intersection, the plaintiff testified that the defendant entered the intersection from her left at a high rate of speed and before the light of the automatic traffic signal had turned green. The defendant alleged that he had the right-of-way but his evidence disclosed that he reached the intersection when the color of the signal light was amber and that in violation of Section 1026 of the Motor Vehicle Code of 1929, P.L. 905, he entered the intersection before the light turned green. The trial judge in his charge instructed the jury that if they believed that the accident happened as the defendant said it did, it was for them to decide under that evidence whether the defendant was negligent. Held: (1) That the court below did not err in his charge to the jury, (2) that where there was conflicting evidence the case was for the jury and (3) that the judgment entered for the plaintiff will be sustained.
Section 1026 of the Motor Vehicle Code of 1929, P.L. 905, requires vehicles to stop at intersections when the color of the traffic signal light is red and to remain standing until green or "go" is shown alone.
Appeal No. 427, October T., 1931, by defendant from judgment of C.P., No. 2, Philadelphia County, June. T., 1930, No. 6664, in the case of Ethel McCartney v. Samuel A. Bareford.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and STADTFELD, JJ. Affirmed.
Trespass to recover for personal injuries. Before STERN, P.J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $1,050 and judgment entered thereon. Defendant appealed.
Error assigned, among others, was the charge of the court.
Louis Wagner and with him Richard A. Smith and Thomas J. Clary, for appellant.
Morris W. Kolander, for appellee.
Argued December 8, 1931.
The complaint on this appeal is based on the following extract from the charge: "On the other hand, if the accident happened as Mr. Bareford [appellant] and his corroborating witnesses say it did, then you will have to decide whether, under that testimony Mr. Bareford was negligent, because it may be that even on his own story, he was negligent." Appellant criticizes it on the ground that it withdrew from the jury the "particular theory of negligence" on which the case was tried. We do not so understand it.
Plaintiff was a passenger in the car of her brother, who drove northward on 5th Street, 44 feet wide between curb lines. Defendant drove his automobile eastward on Lindley Avenue, 33 feet wide between curb lines. There was an automatic signal light, showing red, green or amber, in the intersection of the two streets. Fifth Street had both north-bound and south-bound street car tracks.
From the evidence offered on behalf of plaintiff, the jury could have found that defendant traveled at high speed — "40 to 45 miles an hour" — and continued into the intersection before the signal for Lindley Avenue turned green. On the other hand, from some of the evidence offered on behalf of defendant, the jury might have found that he was not negligent, but that plaintiff's brother was negligent in approaching and attempting to cross Lindley Avenue. With such contradiction the court was bound to submit the case to the jury.
In his charge the learned trial judge went over the evidence in detail, and while doing so, used the sentence which was picked out of the charge and assigned for error. Appellant, while not denying that there was evidence for the jury, complains particularly that there was nothing in defendant's evidence which could support a finding that he was negligent, and that the sentence quoted was therefore inapplicable. Now, laying aside the evidence of plaintiff and her witnesses to the effect that defendant was negligent, the jury could also have found, from part of defendant's evidence, that when he reached the intersection, the color of the signal light was amber, and that a street car was then moving against an amber light southward across Lindley Avenue; that he passed into the intersection while the street car was crossing Lindley Avenue, and that he did not see the approach of the automobile in which plaintiff was riding, until he reached a point at which he could see around the back of the street car; that he therefore must have entered the intersection before the light turned green. Section 1026, entitled Traffic Signal Interpretations, Motor Vehicle Code, 1929, P.L. 905, 985; 75 P.S. 635, provides as follows: "3. Red or `Stop.' — Traffic facing the signal shall stop before entering the intersection and remain standing until green or `go' is shown alone. ....." The evidence, if believed, would also support a conclusion that defendant did not comply with that section in moving into the intersection; see Galliano v. East Penn Electric Co., 303 Pa. 498; Gilles v. Leas, 282 Pa. 318; Mantia v. Pearlman, 91 Pa. Super. 478.
Judgment affirmed.
This opinion was written by Judge LINN prior to his appointment to the Supreme Court, and has been adopted as the opinion of this court. F.M. TREXLER, P.J.