63 A.2d 497 | Pa. Super. Ct. | 1948
Argued September 30, 1948. Three separate trespass actions were instituted, all of them arising out of a right angle collision between the automobile of William Adam, Jr., and a police car of the City of Philadelphia, which occurred at or about the middle of the intersection of Girard Avenue with Sixth Street in that city. All actions were tried together before the same jury which returned verdicts awarding damages for personal and car injuries to William Adam, Jr., plaintiff, and damages to his wife, Jean, co-plaintiff, for personal injuries. Separate verdicts in favor of William Adam, Jr., defendant, denied damages to Rocco LaMarra and William A. Sims, police officers involved in the collision, in the actions brought by them, individually and to the use of the City of Philadelphia. The City was likewise denied a recovery for damage to its property which it sought by way of a counter-claim. The court below having dismissed the appellants' motions for new trials and judgments n.o.v. and having entered judgments on the verdicts, these appeals followed.
The evidence adduced, viewed most favorably to appellees(Delair v. McAdoo,
Girard Avenue east of Sixth Street is sixty-four feet wide from curb to curb. Girard Avenue west of Sixth Street is eighty-four feet wide. There are east and west bound trolley tracks in the center of Girard Avenue and a single trolley track in the center of Sixth Street. The streets were dry and visibility good. When Adam reached the intersection he looked to his right and left and observed only one car approaching from his left "some distance away," "perhaps 100 feet or so." He could neither discern the color of the car, — a red police car — nor estimate its speed. No horn, whistle or other signal was sounded or given by the operator of the police car. The signal traffic light controlling the traffic was, and remained, green in favor of Adam and was red for Girard Avenue traffic. Relying upon his observation of the traffic and traffic light in his favor, Adam continued forward and committed himself to the intersection. When the front wheels of his car reached the first rail of the west bound trolley tracks, he again observed the police car, which was then about fifteen feet away, and was proceeding directly toward his car at a very fast rate of speed. He attempted to avoid a collision by accelerating the speed of his car. The attempt failed and the police car crashed into the left side of his car immediately in front of the door. The impact so affected the operation of the steering gear and *273 the brakes of his car that Adam could not control it and it proceeded across Girard Avenue and crashed into an iron telegraph pole.
"Motorists about to cross such intersections must be highly vigilant and exercise extreme care in avoiding accidents and not merely depend for a `safe passage' exclusively on some theoretical `right of way' which they may possess or think they possess. Abstract rights sometimes have to yield to concrete facts": Weinberg v. Pavitt,
The operator of a motor vehicle must, at all times, exercise reasonable care in the circumstances. He must have his car under such control that it can be stopped before doing injury to any person or thing in any situation reasonably apt to arise in the circumstances: Reidinger v. Lewis Jones, Inc.,
Contributory negligence will, however, "be judicially declared only where it is so clear that reasonable minds cannot differ as to its existence": Reidinger v. Lewis Jones, Inc., supra,
The facts, as concluded by the jury, show that Adam, having the "green" signal in his favor, approached and entered the intersection in a careful manner. There was no other vehicle observable to impede his travel south on Sixth Street. He had the right to assume within reasonable limits that traffic on Girard Avenue would obey the "red" signal and come to a stop before entering the intersection. In this case there was no blind recognition or dependence on, of traffic signals nor slavish obedience to the assumption of the exercise of care by another, when common sense, prudence and care, if needed or exercised, would have, in the realities of the situation, shattered that assumption and would have directed a safer course. Here he was justified in relying *276 on the assumption the car approaching the intersection would not disregard the traffic signal which was against it and would not run into his car which was plainly visible but would come to a stop before entering the well lighted intersection.
Was the police car operated in reckless disregard for the safety of others? A police car operated in chase or apprehension of law violators or suspects or an ambulance when traveling in emergency1 is exempt from The Vehicle Code of May 1, 1929, P.L. 905, as amended by the Act of June 5, 1937, P.L. 1718, regarding speed (§ 1002(f) 75 PS 501), traffic signals (§ 1026(d) 75 PS 635), entries upon through highways and stop intersections (§ 1016(d) 75 PS 591); and, when operated upon official business with audible signal, the exemption applies to the right of way rule (§ 1014(b) 75 PS 573). These exemptions are conditional upon the vehicle being operated "with due regard for the safety of all persons using the highway"; they do not protect the operator "from the consequences of a reckless disregard of the safety of others," or "from the consequence of an arbitrary exercise of [the] right of way." *277
The municipality is jointly and severally liable with the operator for damages (Act of May 1, 1929, P.L. 905, § 619, as amended by the Act of June 29, 1937, P.L. 2329, § 1, 75 PS 212) caused where such negligence is of a reckless nature. Reilly v.Philadelphia,
"What constitutes a reckless want of care on the part of the operator of a motor vehicle varies with the circumstances of the particular case": Cavey v. Bethlehem,
What has been said with regard to the alleged contributory negligence of Adam, the husband, and the negligence of the appellants makes unnecessary any discussion of the allegation of contributory negligence on the part of the wife, Jean Adam. There was no evidence, peculiarly applicable to her conduct, which would convict her of negligence while absolving her husband. Our discussion likewise amply shows that the verdicts were not against the weight of the evidence.
Appellants assigned as error a portion of the charge which was in substance that if as Sims testified he was traveling eighteen miles per hour and did not see the *280
Adam car, although there was nothing to obstruct his vision, until it was immediately in front of him, the jury would be warranted in finding he was driving in a reckless manner. No exception thereto was taken at the conclusion of the charge, nor was the court requested to amplify or to correct the same in any way. There is no merit to the exception when the charge is viewed in its whole context. Moreover, as appellants did not avail themselves of the opportunity to specifically call the court's attention to the alleged inaccuracy nor request additional instructions, they cannot now complain because the verdict which they chanced is adverse. Meholiff v. River Transit Company,
We are convinced that the evidence was sufficient to justify the jury in finding, as it did, that the operation of appellants' car was in reckless disregard for the safety of others on the highway. The verdicts of the jury will not be disturbed.
The assignments of error are overruled and the judgments are affirmed.