32 A.2d 407 | Pa. | 1943
This action of trespass was brought by Harry G. Ashworth, plaintiff, against O. S. Hannum, Wade Cochran, and Adolph Swanson, defendants, to recover damages for personal injuries alleged to have been caused by their negligence. The case was submitted to a jury and verdicts returned in favor of plaintiff against Hannum and Swanson; Cochran was absolved. Hannum and Swanson then made motions for a new trial and judgment n. o. v. The learned court below granted Swanson's motion for judgment n. o. v., and refused that of Hannum. The latter's motion for a new trial, however, was granted because of certain fundamental errors in the oral charge concerning the measure of damages. Hannum alone appealed, *395 assigning as error the granting of Swanson's and the refusal of his own motion for judgment n. o. v.
In determining whether or not judgment n. o. v. should be entered, plaintiff is entitled to have the evidence supporting his verdict considered and all the rest rejected:Sorrentino v. Graziano,
Hannum now contends that judgment n. o. v. should have been granted on the ground that plaintiff was contributorily negligent as a matter of law. There is nothing in this. When Hannum's automobile entered the straightaway, plaintiff could not possibly have anticipated the peril that was then imminent. The parked truck and the approaching truck were plainly visible, and there was every reason to believe that Hannum would so control the speed of his car that the Cochran truck would pass the parked truck and the Hannum car before Hannum would attempt to pass the parked truck. The utterly reckless driving of Hannum could not have been anticipated, and it was the sole cause of the accident. Although a guest passenger must exercise reasonable prudence for his own safety (Dunlap v. Phila. R. T. Co.,
The failure of plaintiff to appeal from the granting of Swanson's motion for judgment n. o. v. does not bar appellant's right to appeal: Schwartz v. Jaffe,
In considering Swanson's position we must, inasmuch as the jury returned a verdict in plaintiff's favor against him, view the evidence and all the inferences to be drawn therefrom in the light most favorable to plaintiff. Swanson, having parked his truck on the travelled portion of the highway in violation of the mandatory provisions of Section 1019 (a) of the Act of May 1, 1929, P. L. 905, known as The Vehicle Code, as amended by Section 4 of the Act of June 5, 1937, P. L. 1718, was guilty of negligence per se: Jinks v. Currie,
Judgment and order affirmed.