192 A. 894 | Pa. | 1937
Argued May 25, 1937. On the night of October 19, 1932, at about eleven o'clock, plaintiff was a guest passenger in an automobile owned and driven by defendant. Proceeding up the river road, near the city limits of Harrisburg, the car ran into the rear of a truck, also northbound, which had just been brought to a stop. Plaintiff was severely injured. The present action is based upon alleged negligence in the operation of the car. The court below entered a nonsuit on the ground of contributory negligence.
At the trial, plaintiff testified the automobile had been traveling at between 35 and 40 miles an hour. "Happening to glance ahead," he saw the truck, then "maybe 20 to 30 feet [away], maybe farther than that, I am just guessing." He "immediately hollered" to defendant, who thereupon swerved the car in an unsuccessful attempt to avoid the collision. Asked how far ahead the lights of the automobile shone, plaintiff answered: "Well, I would say the lights of Mr. Straw's roadster shone the same distance as other cars I had ridden in before that. Q. How many feet? A. I would be only guessing if I told you that." It was brought out, however, that in a previous trial against the owner of the truck plaintiff had testified the lights shone "around 30 or 40 feet, I guess, that is as near as I can tell you." Defendant, called as for cross-examination, said the lights of his car shone ahead "approximately fifty feet," but it appeared that, at the previous trial referred to, he had stated he thought they threw a light as far as 200 feet. It was on this testimony of plaintiff and defendant that the nonsuit was entered. The court was of opinion the *579 evidence established that the headlights on the car were not in accordance with section 803(a) of the Act of May 1, 1929, P. L. 905,1 that plaintiff knew this fact, that at the rate of speed of the car it could not be stopped within the range of its lights, and that plaintiff, by tacit acceptance of this situation, forfeited his right to recover.
The court was not justified in its assumption that the lights on defendant's car did not comply with the provisions of the statute. Defendant's testimony, when called as for cross-examination, was binding on plaintiff unless contradicted, but it was contradicted by the testimony he had given at the former trial; therefore it cannot be held that plaintiff was concluded by defendant's present statement that the lights shone approximately fifty feet. On the other hand, the testimony of plaintiff that the lights shone around thirty or forty feet was not given as independent, substantive evidence in the present trial; his admission that he had previously so testified went only to his credibility. Incidentally, there was evidence the car had been recently inspected and given an inspection tag.
Apart from what has been said, even were it to be accepted as a fact, proved beyond the necessity of submission to the jury, that the rays cast by the headlights did not measure up to the requirements of the law, the question of contributory negligence could not properly have been withdrawn from that tribunal. There was evidence that the inadequacy of the headlights was not the efficient or proximate cause of the accident, and, if the jury had so found, this would have prevented plaintiff's alleged knowledge of the defective condition of the lights *580
from constituting contributory negligence on his part: Lanev. Mullen,
The order of the court below overruling plaintiff's motion to take off the nonsuit is reversed, and a venire facias de novo awarded.