dissenting.
I respectfully dissent. I agree with the majority on its disposition of the frivolous contention of the appellants Morton B. Solomon and the City of Philadelphia that Mr. Solomon was not negligent. There is ample evidence in the record to support the majority’s opinion. I also agree with the majority’s disposition of the objections to the evidentiary rulings made by the trial judge. However, regretfully, I must conclude that the plaintiff cannot sustain the verdict in his favor under the law at the time this cause of action arose. The undisputed facts establish that Baum was con*656tributorily negligent as a matter of law since he either did not look or failed to maintain a lookout as he proceeded through the intersection. Helfrich v. Brown, 213 Pa.Super. 463, 249 A.2d 778 (1968) puts it as follows:
Section 1016(a) of The Vehicle Code, 75 P.S. Section 1016(a), requires a motorist to come to a full stop before entering a through highway. Section 1014(c) of The Vehicle Code, 75 P.S. Section 1014(c) requires such motorist to also yield the right of way to all vehicles approaching in either direction on a through highway. Therefore, not only is it his duty to stop and look in both directions before entering an intersection, but it is also his duty as he moves forward and enters the intersection to continue to look and to keep his car under such control that he can stop at any moment and avoid a collision. Lehner v. Schellhase, 341 Pa. 260, 19 A.2d 91 (1941). Here the plaintiff met the requirement that he look both ways before entering the intersection, but he did not perform his duty to continue to look as he passed through the intersection.
Id. 213 Pa.Super. at 467-468, 249 A.2d at 781.
Although the plaintiff claims because of retrograde amnesia he cannot remember the details of the accident, he did state that he had stopped at the intersection and looked twice to his right and his left. (Notes of Testimony, 11/7/84, page 1.88.) His line of vision southward on Bustle-ton Avenue was “clear”. Id. at 1.132. He could see all the way down to Cottman Avenue over nineteen hundred feet away. Id. No cars were parked in front of his car nor were there cars approaching him either from the front or the rear. Id. at 1.132-1.134. Asked whether he could see clearly in the southern direction as well as the northern direction, he responded, “Absolutely”. Id.
The evidence presented to the trial court establishes that Baum began to proceed through the intersection. This and the fact that there was a collision is sufficient to establish that he was contributorily negligent as a matter of law.
*657We need not consider defendant’s contention that he was not negligent or his objections to the judge’s charge because we have concluded that the plaintiff was contributorily negligent as a matter of law and that defendant’s motion for judgment n.o.v. must be granted. In so concluding we are aware that contributory negligence as a matter of law should be declared only when the evidence of such is so clear that fair and sensible men cannot differ in their conclusions as to its existence. Sweigert v. Mazer, 410 Pa. 71, 188 A.2d 472 (1963); Charles v. LaRue, 205 Pa.Super.Ct. 88, 208 A.2d 31 (1965). In our opinion this is such a case because of plaintiff’s failure to continue to look to the north as he crossed the two southbound lanes of Route 8.
Id. 213 Pa.Super. at 467, 249 A.2d at 780.
The Supreme Court in the case of Matthews v. Derencin, 360 Pa. 349, 62 A.2d 6 (1948), said “a person cannot be heard to say that he looked and saw nothing over a far distance when in fact he was struck within a few seconds thereafter by a vehicle coming from that direction.” Id., 360 Pa. at 354, 62 A.2d at 8. To the same effect is Sollinger v. Himchak, 402 Pa. 232, 166 A.2d 531 (1961). The Superior Court in the case of Stacy v. Thrower Trucking Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978), stated that it would apply the incontrovertible physical facts role with great caution and only when the facts are indisputable. In the present case the facts are on the issue of contributory negligence are incontrovertible and even applying the rule with great caution we must reach the conclusion that plaintiff was contributorily negligent as a matter of law.
The plaintiff claims that because of retrograde amnesia he is entitled to a presumption that he did all that was required by the law and was not contributorily negligent. However, we note that this presumption has not been afforded a motorist who has been involved in an accident while attempting to negotiate an unattended intersection. This presumption has been afforded a pedestrian, Rutovitsky v. Magliocco, 394 Pa. 387, 147 A.2d 153 (1959), and a *658motorist who proceeded through an attended intersection with the green light in his favor, Robinson v. Raab, 216 Pa.Super. 397, 268 A.2d 225 (1970). It must be noted that the presumption can be rebutted in either case by reference to Sections 1016(a) and 1014(c) of The Vehicle Code. In a situation where a motorist is required by law to maintain a constant lookout, the presumption, if applicable, is rebutted as a matter of law.
If plaintiff had proceeded through the intersection with the requisite care he could have avoided the accident. He did not. Therefore, as a matter of law, he was contributorily negligent. Even 1% contributory negligence was at the time of this accident enough to deny recovery. The legislature, in its wisdom, by the passage of the Pennsylvania Comparative Negligence Act, has remedied the harshness of this result. I believe that we are bound by the prior law.
Accordingly, I would reverse the trial court’s order denying the appellants’ motion for judgment n.o.v.
PALLADINO, J., joins in this dissent.