151 A. 678 | Pa. | 1930
At the time in question, the defendant, George H. Simmerman, a practicing physician of Philadelphia, had a winter home at Clermont, Florida, at which the plaintiff, Andrew Knox, also a practicing physician of Philadelphia, was a guest. On the afternoon of February 18, 1927, the two physicians and a mutual friend were returning from the Plymouth Country Club on a paved highway of ample width, called the Mt. Dora Road, in an automobile known as a coupé, owned and driven by the defendant. As they approached a curve the coupé, failing to make the turn, dashed into a large pile of crushed stone outside of the pavement, turned nearly twice over and the plaintiff was thrown from the rear seat against and partly through the dashboard, sustaining personal injuries. This suit brought on account *4 thereof resulted in a compulsory nonsuit, and the refusal to take it off forms the ground for this appeal.
The action was based on allegations of the defendant's negligence which the trial court held had not been shown. We have reached the conclusion that, so far as the case had been developed, the question of defendant's negligence was for the jury. Plaintiff was an invited guest in defendant's coupé and it was the latter's duty to use ordinary care for his safety: Conroy v. Commercial Casualty Co.'s Ins.,
It was a clear day on a broad dry pavement, the coupé was in the exclusive control of the defendant, and the accident was such as under normal conditions does not occur; hence, it so happening, unexplained, would justify a jury in presuming the defendant was negligent. It is not a case of res ipsa loquitur, for negligence is not presumed from the mere happening of the accident, but from the circumstances under which it occurred. It was an abnormal occurrence such as in the usual course of events does not occur. An automobile when driven along a dry level road in daylight at proper speed and under control is not accustomed to leave the pavement and dash against a stone pile at the road side. That the coupé did this very extraordinary thing is some evidence that it was not properly driven. In Shafer v. Lacock, Hawthorn Co.,
Paragraph four of plaintiff's statement avers, inter alia, that "the defendant drove said car towards and around a curve or point in said highway in a negligent, careless and dangerous manner, so that the machine collided with and struck a pile of material deposited in said highway"; while paragraph five states, "Plaintiff avers that the injuries received were due solely and proximately to the negligence of the defendant, in that he drove said car upon the Mt. Dora Highway at a high, dangerous and grossly excessive rate of speed." It will be observed that in paragraph four negligence is charged in general terms, and that paragraph five avers excessive speed as the sole proximate cause of the accident; the proof, therefore, must support the specific cause. The defendant in the instant case could not be expected to come prepared to meet a cause of action not averred, especially when the plaintiff had limited the complaint to a specific act, thereby excluding all others. Had paragraph five been omitted, it might well be held that defendant by going to trial on the general averments of paragraph four had waived his right to a more specific statement. See King v. Brillhart,
The order refusing to take off the nonsuit is reversed with a procedendo.
