188 A. 859 | Pa. | 1936
Argued November 24, 1936. Plaintiffs, who are husband and wife, brought this suit against defendant to recover damages for personal injuries sustained by each plaintiff when a car in which they were riding as guest passengers, was in collision with one owned and driven by defendant. At the trial in the court below the jury returned verdicts in favor of defendant, and from the judgments entered thereon separate appeals have been taken by plaintiffs.
The accident occurred on August 19, 1934, about 4 P. M. at the intersection of Third Street and Olney Avenue, Philadelphia. The automobile in which plaintiffs were guests was owned and driven by Harry Porst. Porst, plaintiff and the wife plaintiff were riding in the *253 front seat of the car in the order named, the wife being on the extreme right of the seat. Porst was proceeding north on Third Street and upon reaching the intersection with Olney Avenue came to a complete stop in obedience to a traffic sign. According to the evidence, he saw no traffic to his left, but observed defendant's car about two hundred feet distant to the right, on Olney Avenue, moving westward towards Third Street. Porst started across Olney Avenue driving the car in second gear, and when the front of his automobile reached the north curb line of Olney Avenue, its right rear wheel was struck by the defendant's car and overturned. At the time of the accident the car driven by Porst was traveling at a speed of approximately seven to eight miles an hour. According to defendant's version of the accident, the car in which plaintiffs were riding collided with his automobile.
Plaintiffs assign as error the instructions given to the jury by the learned trial judge with respect to the duty of plaintiffs as guest passengers in the car. The portion of the charge complained of reads as follows: "Now what is the duty of a guest? Of course in this particular case, as with all guests, they have no control, as we have already said, over the actual manipulation of the steering wheel and the driving of the car. But the law says they must not sit idly by, they must be observant, and if the driver of a car is driving carelessly or negligently or recklessly, or fails in his duty to observe the law, they must do something. They must not remain inactive and they must remonstrate as best they can. If they fail under such circumstances to remonstrate with the driver, in other words, if they sit idly by and see the driver doing a careless act and say nothing, that is carelessness on their part, that is contributory negligence. They also must be observant at intersections and look for cars also. They cannot sit idly by and not pay any attention to traffic, and their failure to be observant under those circumstances is carelessness." *254
We are convinced that this instruction placed too great a duty of care upon the guest passenger. While it is true that if a guest passenger joins with the driver in testing danger by the careless, negligent or reckless operation of an automobile, such act would constitute negligence on his part. We have said that where there are dangers known or reasonably manifest to the guest, who has an opportunity to influence the situation for safety, if he sits by without warning or protest and permits himself to be driven to his injury, he cannot recover. But the instruction here goes beyond the principles which have been settled in the numerous cases before this Court dealing with the subject.* It would seem by its language to impose upon the guest passenger a responsibility equal with that placed upon the driver of the car, of discovering possible dangers ahead and in consequence, for the safe operation of the vehicle itself. The trial judge charged: "But the law says they mustnot sit idly by, they must be observant." Yet we held inKilpatrick v. Phila. Rapid Trans. Co.,
Further the charge reads: "They also must be observant atintersections and look for cars also. They cannot sit idly by and not pay any attention to traffic, and their failure to be observant under those circumstances is carelessness." Clearly this is error. In Davis v. American Ice Co.,
The same rule was announced in the earlier case ofAzinger v. Pa. R. R. Co.,
Returning to the facts of this case the plaintiff testified that at the time the car in which he was riding came to the intersection, he did not see defendant's car nor did he look for approaching traffic at that time. The wife plaintiff testified she looked only to her left as they approached the intersection, and did not see defendant's car until after the collision. Under the instructions of the court, as applied to this evidence, the jury might have believed that it was the duty of both appellants to look for traffic at street intersections, to the same extent as the driver of the car. This portion of the charge was therefore harmful to plaintiffs and prejudiced their cases before the jury.
Referring to the complaint that the trial judge erred in instructing the jury in answer to its question — "whether there is any law that prohibits three persons riding in the front seat of this car," we have examined the words used and find no reversible error therein. The answer given by the court accords for the most part with the principles recently announced by this Court in the case of Mahoney v. City ofPittsburgh,
For the reasons which we have stated, a reversal of the judgments entered below in favor of the defendant is necessary.
In No. 320, January Term, 1936, the judgment is reversed and a venire facias de novo awarded. In No. 321, January Term, 1936, the judgment is reversed and a venire facias de novo awarded.
