244 Pa. 122 | Pa. | 1914
Opinion by
On April 3, 1911, at a little after five o’clock p. m., the appellee was riding west on a motorcycle on the north side of Walnut street, in the City of Philadelphia. When he was at a point about fifty feet east of Thirty-
At the time of the collision the appellee, was on the side of the street where he ought to have been, and it was the duty of the chauffeur to have passed him to the right or south, as the street runs east and west: Foote v. American Product Company, 195 Pa. 190. But though this is so, if the collision occurred under the circumstances detailed by the chauffeur and the two occupants of the automobile, called as witnesses for the defendant, it was an unavoidable accident. He testified that, as he approached Thirty-seventh street, on the south side of Walnut, close to the curb, he saw, through the open yard in front of the building at the corner, a team coming up Thirty-seventh street at a rapid rate of speed. He said it was coming at a “terrible rate,” and he thought “it was a runaway.” He further testified that the only thing he could do to avoid collision with it was to turn his- car over to the north side of the street. This he did, cutting diagonally over from the southwest corner to the northeast corner of the intersecting streets. After he had thus avoided collision with the team, he reduced the speed of his car to about three miles an hour, and then saw the motorcycle coming towards him, but turning to the south side of the street. He then increased the speed of his car, driving in close to the north side of the street, but, according to his testimony, the appellee had changed his course from the south to the north, and ran into him. A daughter of the defendant and a companion who was with her in the car corroborated the chauffeur in his account of the accident. But quite a different situation was presented by the witnesses called for the plaintiff, and, in view of it, the court could not have said, as a matter of law, that the injury of the appellee was not the result of the negligence of the
A witness to the collision, called by the plaintiff, testified that no team was coming up Thirty-seventh street; that he saw the automobile of the defendant go over from the south side of Walnut street to the north side at a rate of speed of fourteen miles an hour; that it struck the appellee close to the north side of the street, and its speed was so great that it carried the motorcycle thirty feet beyond the point of collision. Another witness stated that the automobile turned to the north side of Walnut street, at the corner of Thirty-seventh, to get ahead of a team that was moving eastward in front of it. A fair inference to be drawn from the testimony of these witnesses for the plaintiff was that the chauffeur suddenly turned his car from the south side of Walnut street over to the north, not to avoid collision with a team coming up Thirty-seventh street, but for the purpose of passing one which was going east in front of the automobile, and that he was driving the machine at such a reckless rate of speed that he was unable to control it in time to avoid collision with the plaintiff, who was approaching him on the north side of the street. The question of the chauffeur’s negligence under all the evidence was submitted to the jury in a most careful charge, and the finding that he was negligent cannot be disturbed.
A second contention of the appellant is that, under the facts developed at the trial, the rule respondeat superior ought not to be applied. She was the owner of the automobile which collided with the plaintiff, and, at the time of the collision, her chauffeur was operating it, not upon any errand of his own, but in obedience to an order given by her daughter, who, with the other occupant of the car, was on the way to appellant’s home. Under these circumstances, the burden was upon her to show that, at the time the chauffeur ran into the plaintiff, he “was not acting within the scope of his employ
Assignments of error overruled and judgment affirmed.
