Mathews v. PATTON

Dissenting Opinion by

Ms. Justice Bell:

Plaintiff, who was not on a through highway, came to a blind corner and drove through the intersection at what the majority assumes was a speed of 20 miles an hour. Defendant was driving at a speed of 25 to 85 miles an hour. There was no light or stop sign. 'The majority states: "As the plaintiff entered upon Brook-field Avenue he saw the defendant’s car about two or three oar lengths away traveling toward him with such velocity that a sudden stoppage on his part would invite inevitable bollision.* He accordingly swerved to the right and accelerated Ms speed, hoping that by this maneuver he could avoid the defendant, who . . . [struck] plaintiff’s cab at the rear left door.”

The law of Pennsylvania has hitherto been, and in my judgment should still be, that a motorist who is not on a through highway must, when approaching a *630blind corner, not only look to Ms right and left for approaching traffic but must have his ear under such ¡control that he can stop it in time to avoid a collision with an automobile approaching at right angles. Under a myriad of authorities, this plaintiff was undoubtedly guilty of contributory negligence as a matter of law: Perpetua v. Philadelphia Transportation Co., 380 Pa. 561, 112 A. 2d 337; Lewis v. Quinn, 376 Pa. 109, 101 A. 2d 382; Byrne et al. v. Schultz, 306 Pa. 427, 160 A. 125; Allega v. Eastern Motor Express Co., Inc., 378 Pa. 1, 105 A. 2d 360; Grande v. Wooleyhan Transport Co., 353 Pa. 535, 46 A. 2d 241; Shapiro et ux. v. Grabowsky, 320 Pa. 556, 184 A. 83; Riley v. McNaugher, 318 Pa. 217, 178 A. 6.

In Perpetua v. Philadelphia Transportation Co., 380 Pa., supra, this Court held that plantiff’s testimony convicted him of contributory negligence as a matter of law. Speaking through Justice Arnold, we said: “. . . Plaintiff has not met the burden imposed upon him to ‘make out a case clear of contributory negligence’: Lewis v. Quinn, 376 Pa. 109, 101 A. 2d 382. ‘ “The law only makes obligatory the rule of common sense regarding the duty of a driver at the intersection of streets, where traffic is very dangerous because conflicting. He must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look, and see what is visible, before attempting to cross the intersecting street” ’: Rea v. Pittsburgh Railways Company, 344 Pa. 421, 425, 25 A. 2d 730. . . .”

In Lewis v. Quinn, 376 Pa., supra, this Court, in affirming a nonsuit, said (pages 112, 113) : “ . It has been firmly established that a driver having the right of way at an intersection is still bound to use proper care under the circumstances to avoid collision with an approaching vehicle: Alperdt v. Paige, 292 Pa. 1; *631Robinson v. Berger, 295 Pa. 95; Campagna v. Lyles, 298 Pa. 352; Curry v. Willson & Sons, 301 Pa. 467; Bailey v. Lavine, 302 Pa. 273; Frank v. Pleet, 87 Pa. Superior Ct. 494. . . .

“ . He must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look, and see what is visible, before attempting to cross the intersecting street/ ”

In Byrne v. Schultz, 306 Pa., supra, the Court said (pages 431-433) : “. . . In Gilíes v. Leas, it is said, at page 320: ‘We have held over and over again that at street crossings drivers must be exceedingly vigilant to have their cars under such control that they may stop at the slightest sign of danger. If they do not, and an accident results, they are liable in damages for its consequences.’ . . .

“. . . He must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look, and see what is visible, before attempting to cross the intersecting street.”

In Allega v. Eastern Motor Express Co., Inc., 378 Pa., supra, the Court said (page 4) : “That appellant was negligent as a matter of law cannot be seriously questioned. Although he had the technical right of way and had a right to assume that the duty owed him would be performed (Martin v. Gall, 370 Pa. 258, 87 A. 2d 925), yet he did not have the right to proceed blindly into the intersection. . .”

In Grande v. Wooleyhan Transport Co., 353 Pa., supra, the Court affirmed a judgment mow., and speaking through Justice (later Chief Justice) Brew said (page 538) : “We have said repeatedly that care at street crossings is the highest duty of drivers: Johnson v. French, 291 Pa. 437, 140 A. 133; Byrne v. Schultz, 306 Pa. 427, 160 A. 125, and cases there cited. This is true even when one has the right of way. . . . *632‘He must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look and see what is visible, before attempting to cross the intersecting street’.”

A motorist on a non-through highway is not permitted to drive blandly or blindly into or through a blind intersection — in order to be free of contributory negligence he must have his car in such control before entering the intersection that if necessary to avoid oncoming traffic he can stop it at the entrance of the intersection.

If the cases cited and quoted above are still the law of Pennsylvania this plaintiff was clearly guilty of contributory negligence as a matter of law. I would enter a judgment non obstante veredicto.

Italics throughout, mine.