Before KALODNER, GANEY and FREEDMAN, Circuit Judges.
A jury returned a verdict in favor of the defendant Smith in an action brought by the plaintiff Moore for injuries which he sustained when the truck in which he was a passenger collided with an automobile driven by Smith at an intersection of two highways in Erie County, Pennsylvania. Following denial of his motion for a new trial*fn1, which charged errors in instructions to the jury, the plaintiff filed this appeal. Jurisdiction exists by reason of diversity*fn2 Pennsylvania law governs.
The accident happened at about noon on September 1, 1961, at almost the center of the intersection of Pennsylvania Highway Route 19 and Pennsylvania Highway Route 6N, about four miles south of Waterford, Erie County. The day was clear; the two highways, each 22 feet wide, were dry. The truck in which plaintiff was a passenger was proceeding north on Route 19; defendant's car was proceeding east on Route 6N, so that the truck was to his right. The plaintiff, and the truck driver, as well as other witnesses, testified that the traffic light was green for northbound traffic as the truck proceeded to cross the intersection; that the defendant's car ran through a red light and struck the truck, causing it to careen and turn over. The defendant and his witnesses said that he had the green light and that the truck went through a red light. The truck driver said that his view was somewhat obstructed to the left - or west - because of an elevation at the southwest corner on which there was some foliage and shrubs. The defendant did not say that his view to his right, from which the truck came, was obstructed by the elevation. He simply said that the traffic light "looked" green in his favor; he "was just watching the light"; he "didn't look to the left - or to the right", but went straight ahead. His testimony on direct and cross-examination, set forth in the margin*fn3, in substance discloses that the defendant never saw the truck "until it was upset" and that he "didn't know what hit me."
The trial judge charged the jury with respect to this testimony that under Pennsylvania law "a motorist with a green light in his favor must look before entering into an intersection - you have the right of way because of the green light, but you are bound to take a look at the situation in regard to what may be in front of you - you can't barge through the intersection just because the light is green."
Later, after he had charged the jury with respect to damages, the trial judge, at the very end of his charge, said:
"Now, all counsel have argued that the light was green in their direction * * *. You may think that it happened so quick, so close to the light and so on, that both of them were at fault, or that the truck driver's light turned red and Smith was privileged to go ahead as he did and the truck driver was guilty. * * *" (emphasis supplied)
The trial judge did not instruct the jury that under Pennsylvania law an operator of a motor vehicle who does not look for moving traffic on an intersecting street or road as he approaches the intersection is guilty of negligence as a matter of law, even though he proceeds across the intersection with a traffic light in his favor. His statement to the jury "that you are bound to take a look * * * you can't barge through the intersection just because the light is green" fell far short of the required instruction that a failure to look, and "barging through", is negligence as a matter of law.
Here the trial judge left it to the jury to decide whether a failure to look and "barging through" constituted negligence. His later instruction, at the end of his charge, that "Smith was privileged to go ahead as he did", if he had the green light, was of course plain error.
Dispositive here, in its critical aspects, is the "all-fours" case of Ratcliff v. Myers, 382 Pa. 196, 113 A.2d 558 (1955). There the plaintiff Ratcliff was a passenger in an automobile which collided in an intersection with a car operated by the defendant Sterling Myers on the business of its owner, co-defendant Albert Myers. The defendants brought in as additional defendants, Yost, the driver of the car in which the plaintiff was a passenger, and Bryant Air Conditioning Corporation, Yost's employer. At the trial, the defendant Sterling Myers testified, as the defendant did in the instant case, that he looked, saw the green light was in his favor, and the next thing he knew he "was in the intersection and we were in collision;" that when he noticed the Yost car "seeing and hitting was just one."
As in the instant case, the trial judge left it to the jury to determine whether the defendant Myers was negligent. The jury returned a verdict in favor of the defendant Myers and against Yost. The trial court granted a new trial and the Supreme Court affirmed. In doing so it stated (p. 201, 113 A.2d p. 560):
"It is well established that an operator of a motor vehicle who does not look for moving traffic on an intersecting street as he approaches the intersection is quilty of negligence as a matter of law even though he proceeds across the intersecting street with a traffic light in his favor. Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382. Myers himself admitted that 'seeing and hitting was one,' which is proof positive that he could not have looked up Highway Route 194 before entering the intersection; it must also be borne in mind that the Yost car, coming from the right, had the right of way." (emphasis supplied)
In Nehrebecki v. Mull, 412 Pa. 438, 194 A.2d 890 (1963) a jury found in favor of a defendant who had testified that he did not look to his right or left for other cars when he entered the intersection. The trial court granted a new trial and the Supreme Court affirmed. In doing so it stated (p. 441, 194 A.2d p. 891):
"It is thus patently clear that the jury's conclusion that the defendant was free of any causative negligence is not supported by the record. At an intersection, a driver of an automobile is required to be vigilant and to look to his right and left for ...