163 A. 452 | Pa. Super. Ct. | 1932
Argued October 6, 1932. The defendant, on December 31, 1929, at about 6:45 *94 P.M., was driving a Ford roadster southward on Bustleton Pike, in the City of Philadelphia. He was on the right side of the highway and was proceeding at the rate of 20 or 25 miles an hour. A car was coming in the opposite direction, the lights of which blinded him. When his vision commenced to be affected by the glare, and when he was at a distance of about 125 to 150 feet from the oncoming car, he started to slow down. The defendant was called on cross-examination to establish plaintiff's case, and he testified, in part, as follows: "Q. How long were you driving after you noticed this glare was blinding you? A. I had driven I suppose about 100 feet. I had my gas off, slowing down. Q. And you were still moving for about 100 feet after you noticed the glare blinding you? A. Yes, just kept moving." When he was travelling at this reduced rate of speed, he hit Frederick Hoffman, husband of the plaintiff, who received fatal injuries. If he was travelling at 20 miles an hour, it would require about 3 seconds to go 100 feet. It appears that deceased was a man of good health and habits, and that it was his custom at about 7 o'clock in the evening to leave his place of employment and walk a short distance to his home. The plaintiff assumed that the deceased when he was hit was walking toward his home on the paved portion of the street. There is no direct evidence, however, to support that theory.
This action of trespass was brought, alleging the negligent operation of the automobile; that the defendant was operating his car at a high and dangerous rate of speed, without proper control and with inadequate brakes and lights; failure to give warning of his approach; and violation of the statutes of Pennsylvania and the ordinances of the City of Philadelphia. The case was submitted to the jury, verdict rendered for plaintiff. This appeal followed the dismissal of a motion for judgment for defendant n.o.v. *95
The plaintiff was required in good faith to show that the fatal injuries were the result of defendant's negligence. There were no eye-witnesses to the occurrence, but we concede that direct testimony was not essential if adequate proof was established by circumstantial evidence.
The defendant stated that owing to the lights of the approaching car he did not see the deceased; that after the impact he stopped his car within 10 or 12 feet. The Bustleton Pike at this point is 20 feet wide. Defendant's car at the time of the accident was about 7 or 8 feet to the right of the center line, with its right wheels within 2 or 3 feet of the edge of the road. The deceased fell on the gravel path at the side of the road where he was picked up by the defendant.
What was the defendant's negligence? He was proceeding at a moderate rate of speed; the lights of the car coming in the opposite direction affected his vision; he then reduced his speed; he remained on that portion of the highway where he had a right to be; there is no evidence of any defect in his lights or brakes, which contributed to the accident, or of a violation of any ordinance of Philadelphia or statute of Pennsylvania. The evidence is lacking to show whether the deceased had been walking on the macadam portion of the highway, or the direction he was going. He may have suddenly stepped or fallen in front of defendant's car. The manner in which the accident occurred is a matter of conjecture. The mere proof that an automobile came in contact with a pedestrian raises no presumption of negligence: Stern v. Reading,
In Erbe v. Phila. R.T., supra (p. 570), where there was no witness to the accident, which happened at night, Mr. Chief Justice FRAZER said: "For all that appears *96
in the evidence, deceased may have been seized with a sudden illness and fallen on the track immediately in front of the car; ...... or the accident may have resulted from other causes, for which the defendant could not be held responsible: Stringert v. Ross Twp.,
In the case of Wilhelm v. Sunbury Selinsgrove Ry. Co.,
But, in the present case, defendant's car was handled in such a manner that it remained on the highway. The learned court below cites Reardon v. Smith,
To permit a recovery, we must conclude that the defendant either saw this man, or should have seen him, and recklessly ran him down, which is not justified by the evidence; or hold that he should have stopped immediately when blinded, which, in our judgment, is not the law.
Judgment is reversed, and is now entered for the defendant.