52 A.2d 195 | Pa. | 1946
This is an appeal from the refusal to remove a compulsory nonsuit in a trespass case. The plaintiff, a Philadelphia police officer, was injured in a motor accident, by being thrown from the running board of a truck on which he was standing. He was guiding the driver through heavy vehicular traffic, conveying a severely injured passenger to a hospital. The judgment of the court below was that plaintiff was guilty of contributory negligence in assuming a position of danger, and entered the nonsuit which it refused to take off. The appeal followed.
Plaintiff, on March 9, 1943, in the discharge of his duty, was stationed outside the United States Navy Yard on the north side east of Broad, in the City of Philadelphia. At about 9 a. m. a dump truck drove up and the driver "asked [plaintiff] to take him to the hospital, to direct traffic and clear traffic, that he had a seriously injured person in the truck." Plaintiff opened the right door of the cab of the truck and observed that *513 "there was a man laying across the lap of another man and he was bleeding all over and there was no room anywhere to get inside." Plaintiff then went to the driver's side (left) and stood on the running board. It was testified, and is a matter of judicial knowledge, that because of war conditions traffic to, from and about the Navy Yard was at the time exceptionally heavy. The reason which plaintiff assigned for standing on the running board was that he and his uniform could be seen, and he could be "able to direct traffic". With the plaintiff blowing his police whistle and the driver of the truck sounding his horn, the truck, with the injured man across the lap of the other passenger, proceeded north on Broad Street en route to the Methodist Hospital located at Broad and Wolf Streets, over a mile from the Navy Yard. While proceeding north on Broad Street, when south of Porter Street, the truck swerved to the right to pass an Army truck proceeding in the same direction and struck an ice truck parked double in front of 2517 South Broad Street. The truck on which the plaintiff was riding turned over. Plaintiff was severely injured.
Ordinarily one who unnecessarily rides on the running board of an automobile and is injured is guilty of contributory negligence as matter of law: Schomaker v. Havey,
The reason for the rule is well stated by Mr. Justice DREW inEarll v. Wichser, supra, p. 358: ". . . where a person chooses a place of danger in preference to one of comparative safety, and by reason of his position is injured, his own act in placing himself in such dangerous position amounts to an assumption of the risk. . . ." *514
Where, however, the action arises because of the alleged negligence of some one other than the driver of the car, whether plaintiff's position constitutes the lack of exercise of care under the circumstances, is for the jury: Robinson v.American Ice Co.,
And it is not contributory negligence, as matter of law, for a plaintiff to expose himself to danger in a reasonable effort to save life or injury. The question is then one of fact for the jury. See Restatement, Torts, section 472; 45 C. J. section 520, p. 966; 38 American Jurisprudence section 361, p. 1070;Corbin v. Philadelphia,
In the case of emergency one is not required to exercise thebest judgment. The test is whether plaintiff acted as a reasonably prudent man would have *515
acted under the same or similar circumstances. The answer is for the jury: Gibbons v. Wilkes-Barre, etc., R. Co.,
Appellees rely upon the Act of June 27, 1939, P. L. 1135, section 1023 (b), amending the motor vehicle code of May 1, 1929, P. L. 905, 75 PS 632, which provides: "No person shall hang on to, or ride on, the outside or the rear end of any vehicle." Srednick v. Sylak,
Plaintiff alleged that defendant Malloy was the owner of the truck and the employer of its driver; that defendant Siciliano leased the truck and driver from defendant Malloy; that defendant, Siciliano, sublet the truck and driver to defendant McNichol Paving and Construction Company, Inc., and that the additional defendant, Francis Quinn, was the owner of the ice truck with which the truck on which plaintiff was riding came in collision.
Concerning the liability of the additional defendant, who was not operating or responsible for the operation of the truck, whether plaintiff, in standing on the running board, was negligent, is a question of fact for the jury and not one of law for the court. *516
As to the other defendants, we are convinced that whether plaintiff's position was dangerous, in all the circumstances, as lacking the exercise of care, is also for the jury. Plaintiff, a police officer, in the proper exercise of his duties, was met with an emergency and exposed himself to danger in a reasonable effort to save life. He observed a bleeding severely injured man in the cab of the truck lying across the lap of the passenger. He was requested to conduct the vehicle, through extremely heavy traffic, to the hospital which was over a mile away. In such an emergency and with commendable effort, it was not unnatural and improper for the officer, in full police uniform, to stand upon the running board of the truck so that in blowing his police whistle to open and direct traffic he would be in plain sight of other users of the highway. This is the ordinary and usual method adopted by policemen in similar circumstances: instance secret service men on the running boards of automobiles while conducting Presidents of the United States, or other distinguished personages through city streets. In the congested traffic conditions then prevailing it would have been futile for the officer to have climbed in the dump truck where obviously his presence would have been obscured and his object frustrated. It would have been equally ineffective to have commandeered another vehicle, which, in heavy traffic, would be apt to be separated from the truck carrying the severely injured passenger. Even though subsequent or more mature judgment might have indicated that plaintiff secure a safer position, yet in the existing emergency with which he was confronted, plaintiff was not required to exercise his best judgment. At least, we cannot say that he was guilty of contributory negligence under such circumstances, as matter of law: the question should have been left to the jury.
In entering the nonsuit the court below relied uponValente v. Lindner,
The judgment is reversed and a procedendo awarded.
