Riley v. McNaugher

Opinion by Mr. Justice Simpson, As the result of a collision between an automobile owned and being operated by plaintiff’s husband and another automobile, owned and being operated by defendant, plaintiff’s husband was so severely injured that he died a short time thereafter. Alleging that the collision was due to the negligence of defendant, plaintiff, on behalf of herself and her minor children, sued to recover damages from him. These the jury awarded to her, and the trial judge having refused defendant’s motions for judgment non obstante veredicto and for a new trial, and *219 judgment having being entered on the verdict at his express direction, defendant prosecuted the present appeal. As we are clearly of opinion that the evidence shows the collision would not have happened if plaintiff’s husband had not been contributorily negligent in the operation of his car, we shall confine ourselves to this point alone, also limiting ourselves, in the statement of the facts, to those which bear upon the question of contributory negligence. The accident happened about midday of August 19, 1932, at the intersection of the Lincoln Highway and the Carlisle-Hanover Turnpike at Cross Keys in Adams County in this State. Plaintiff’s husband’s car was moving northward on the turnpike, and defendant’s car was moving eastward on the highway. When her husband was nearly at the intersection, plaintiff says he stopped the car, looked in both directions and then moved forward. His view westwardly along the highway was, at that point, obscured by a house, some trees and a telegraph pole, located at the southwest corner of the two roads. These so obstructed his view in that direction, that he could see only about 75 feet. This he knew for he had traveled over the crossing for fifteen years. As he moved forward the first part of the highway to which he would come was that over which traffic moved from west to east, that is from the direction as to which his vision was thus obscured, and from which defendant’s car approached. As he neared the highway, the house, trees and pole obstructed his vision less and less, and he could see further and further westwardly along the highway, until, when he reached its southernmost line, he could see 700 to 800 feet in that direction. An automobile driver does not do his whole duty, when about to cross another highway, by taking one look and then moving forward. He must continue to look while crossing, and a failure so to do is contributory negligence : Byrne et al. v. Schultz, 306 Pa. 427; Peters v. Atlas Powder Co., 313 Pa. 115. It is particularly so in cases like the present where the view is obstructed at the *220 place where the driver has stopped. Whether a failure to stop again under such circumstances is negligence, we need not consider. A failure to continue looking we again decide to be negligence. This conclusion is emphasized in the instant case by section 101J (c) of the Vehicle Code, as amended by section 2 of the Act of June 22, 1931, P. L. 751, 797, which provides that “The driver of a vehicle entering a through highway . . . which has been established as such under the provisions of this act, shall yield the right of way to all vehicles approaching in either direction on such through highway.” The Lincoln Highway was such a through highway, and was so marked at its intersection with the Carlisle-Hanover Turnpike, where this accident happened. When, then, plaintiff’s husband approached the intersection he knew that motorists on the highway had the right of way, and could operate their cars in reliance upon that legal right. This was notice to him to take, such additional care before entering the highway, as, in view of that circumstance, was reasonably required for safety, and to continue exercising such care until he had completed the operation of crossing. The least the one crossing could do was to look carefully before entering on the crossing and to continue thus looking until he had completed the crossing. That plaintiff’s husband did not look again, after he started forward, is testified to by plaintiff herself: “Q. Hadn’t you looked to the left again after you started until you were in the center of the intersection [where the collision took place] ? “A. No, only when I saw this car coming towards us, that is what drew my attention when Mr. Riley [her deceased husband] leaned over the wheel.” And again: “Q. Just answer this please: You have testified I think that your husband came up there to the intersection, stopped the car, looked both ways, and then went on? A. That is all he did. Q. Stopped the car, *221 looked to the left and the right and then started across? A. He looked first to the left, then to the right and then started across.” Appellee seems to think that because plaintiff testified that she did not see defendant’s car until it was about 25 to 30 feet away, that this shows it was not visible before that time. It rather shows a failure to continue looking. Had her husband attentively looked he could have seen, on that clear midday 700 or 800 feet westwardly along the highway, which was straight for that entire distance, and that extended vision continued the entire time he was driving across the highway. There is no contention that there was any defect in his or her eyesight; hence it is idle to say he looked but did not see it, because if he had attentively looked he must have seen it: Bornseheuer v. Traction Co., 198 Pa. 332, 334; Lessig v. Reading Transit & Light Co., 270 Pa. 299; Barton v. Lehigh Valley Transit Co., 283 Pa. 577. The court below has a different but an equally inefficacious excuse. It says that plaintiff may recover because section 1014 (c) of the amended Vehicle Code, partially quoted above, further says: “This provision shall not operate to relieve the driver of any vehicle being operated on a through highway from the duty to drive with due regard for the safety of vehicles entering such through highway, nor shall it protect the driver of any vehicle on a through highway from the consequences of an arbitrary exercise of such right of way.” This provision does not operate, however, to give a plaintiff who has been contributorily negligent a right of action he would not otherwise have had. If it did, then a statute which was intended to give additional rights to the driver on a through highway, would take from him rights which he would have had had he been using an ordinary street or road. This is an impossible conclusion under well settled rules of construction. This view of the case is clearly expressed in Dougherty v. Merchants Baking Co., 313 Pa. 557, and Peters v. Atlas *222 Power Co., 313 Pa. 115, and we need now but reaffirm the principle therein set forth. The judgment of the court below is reversed and judgT ment is here entered for defendant non obstante veredicto.