*1 and for defendant found her minimized own. plaintiff’s trial. for a new motion the court refused admitting urges in the court erred Plaintiff testimony of defendant’s of a between two conversation they presence recited how trainmen in her which by plain- happened said accident was what had testified herself tiff at the time. However, justi- therefore and defendant to that conversation presenting in contradiction fied in its own version testimony question intro- moreover hers; part any objection of her coun- on the duced without sel. peti- years
More than after the trial two alleged in the record correct errors tioned court to testimony charge This and the of the court. request lapse of an unreasonable after time such obviously impossible for it for the court to was then testimony pass accuracy of as transcribed; pointed out most of the er- court moreover, alleged importance of no raised rors were to the issues in the trial. any plaintiff’s being no merit in conten-
There properly the court refused her motion tions new trial.
Judgment affirmed. Appellant, v. Heilman.
Lundin, *2 Argued March 26, 1953; reargued October 1953. 14, Before C. Stern, J., Chidsey, Stearne, Jones, Bell, Musmanno JJ. Arnold,
John E. Evans, Jr., with him & Ivory Evans, Evans, and Maurice L. for Kessler, appellants.
Joseph F. with him Weis, Joseph F. Jr. and Weis, Weis Sherriff, & Lindsay, for McGinnis, appellee. Opinion by Mr. Justice Allen M. November Stearne, 1953: This trespass action was by instituted plaintiffs, husband wife, recover for damages injuries sus- tained by wife while as a riding passenger automobile driven by defendant. The jury returned a favor the defendant. Plaintiffs ap- pealed the court contending below gave an erroneous one of the affirmed instruction to the of the “the viz.: points charge, acci- cause the proximate automobile was dent”. of December on the injuries morning
The occurred wife-plaintiff a.m. The at about 1:00 29, 1948, in her her accompany while, requested home from bowl- another lady she drove automobile, unfamiliar with being The defendant club ing party. her to show accompany the road had the wife-plaintiff front seat rode way. wife-plaintiff her the seated the other passenger while with defendant, in the rear. automobile pro-
There rain. As the light *3 Buena Vista-Love- the known as along highway ceeded Allegheny in Elizabeth Township, dale Hollow Boad, feet into a hundred it went traveled two skid, County, the left down the road toward side sideways a through a little embankment, fence, over highway, the car turned over on and into a There telegraph pole. side. its right the car slightly
The evidence shows that skidded a it Eden bit”) little as down (or “swayed proceeded Park This was at point approximately Boulevard. and one-half miles from the of the accident. place three Park the defendant had After Eden Boulevard leaving The route led the difficulty driving. through no Boston up over the the Borough Versailles, Bridge, Hill and thence on Hill, up Dewey Renzie down n to Buena Vista-Lovedale Road. There Hollow at the Hill a sign posted top Dewey reading “Slip- Wet”. The Lovedale When Hollow Road enters pery of Dewey from the bottom Hill. Just be- right intersection the road to the Al- curves left. yond had driven this road many times though not she did recall on daylight having driven it at 31P
night. roadway asphalt construc- This lane two place tion and is at the accident occurred. level thirty-five per driving thirty miles Defendant was approached hour her as she reduced the intersection, speed slightly, passing.the re- then after intersection speed. sumed the same After the automo- negotiated had bile the automobile skidded curve patch on ice and the accident resulted. charged operator
The court
that the
of an
regulate
speed
automobile must
of his motor vehi
cle commensurate
the circumstances. At the
close
requested
of the instructions the defendant
the court
charge
speed
that “the
automobile
was'
proximate
cause of the accident”. This
charge
obviously
affirmed. Such a
inconsistent
and had the effect of a circuitous directed
Gearing
the defendant: J. C.
L.v. M.
146 Pa.
Lacher,
23 A.
397,
229; Williamson v.
330 Pa.
McCracken,
presented
alleged negligence operating of defendant in her car anat excessive rate under the circumstances. upon The defense was based the fact that the defend- upon ant’s automobile patch skidded an invisible *4 upon highway, ice of which the driver had no notice reasonably and could not expected have been to dis- cover. It is skidding uncontradicted that the occurred any slippery not because of condition of the wet road, but because of the ice on the road. The rec- formation any ord presence is devoid of evidence of the of ice prior three and one-half miles to the scene up accident. very steep Defendant drove and down a winding hill and around any skidding curves without
319 to suspect kind. There no reason any safety the defendant could not proceed perfect at had there- the same moderate which in Hatch Baldrige tofore been said traveling. Judge cannot v. Pa. 141: “. . . It Superior 99 Ct. Robinson, be an automobile said, operating however, to miles open country twenty-five thirty at the rate of an hour greater is than is reasonable where proper there is no be an congested although may traffic, occasional mud ice or . . . .” presence
Justice Drew Chief John (later Justice) stated son v. American Reduction 305 Pa. 158 537, Co., 541, A. it 153: “. . . The of a does not of vehicle skidding, self establish or It encum constitute negligence. bent upon the resulted prove skidding from the he act of the otherwise negligent defendant; is absolved from the consequences: [citing cases]”. Plaintiff to establish negligence must de prove fendant has car mismanaged skidding: his to the prior Simpson et ux. v. 284 Pa. 131 A. or Jones, 596, 541; that defendant car operated his at an rate excessive or that speed, the result of skidding is his carelessness even though there were “patches ice” along Mr. highway. Justice Jones has re viewed area of the field in negligence Richardson v. Pa. 368 84 A. 2d Patterson, 342. Dahl 495, See also man v. 307 Pa. Petrovich, 161 A. Master v. 298, 550; Goldstein’s Fruit & 344 Pa. 23 A. 2d Produce, Inc., 1, Miller v. 443; Measmer, Pa. A. 2d 284.
Plaintiff has failed to any show act of negligent the defendant. At the point where accident oc- curred the road was level and there nothing give notice the treacherous icy of the oc- spot. Two cupants car, wife-plaintiff tes- defendant, tified that there was no difference in the appearance of the road at the spot where ice had formed from any *5 just passenger portion third The
other traveled. any Clifford A. if difference. Halle, not asked saw accident, at the scene the the witness to arrive first merely looked of the road testified the surface ice there from the rain that because the wet “keeping he had time feet”. John [his] formed a hard Township, in E. Elizabeth like- Brennan, constable appearance the of the as com- ice, wise testified pared the looked the Both Mr. roads, wet same. car Brennan’s and the ambulance skidded the scene spite accident. This occurred the fact icy that Mr. Brennan was informed condition. requirement Plaintiffs not met have of their af- proof negligence by showing burden of firmative acts of commission or omission from which reasonable minds duty any by infer a could violation owed wife-plaintiff. No this reason has been shown to disturb verdict.
Judgment affirmed.
Dissenting Opinion bt Mr. Justice Musmanno: Majority Opinion rules affirmance court lower of the defendant’s —“The proximate the automobile not cause Standing ruling accident”—was error. alone, would entitle majority, to a new trial. The plaintiffs however, states that were entitled any they prove event because failed' to any negligence part of the defendant. negligence
The definition of of care under —want hackneyed, shop- circumstances—has so become through years worn and battering monotonous quotation endless that its sententious wisdom is some- simple times aas overlooked, weather vane can be lost *6 and the maze of ignored through compli- when viewed in a cated and meteor- equipment instruments charts, rudimentary that ological laboratory. Nonetheless, definition of can often be more depended negligence and counter- out the currents upon accurately in- than all the justice currents cases negligence volved rules citation authorities jurisprudence, and from text quotations books.
Did the defendant Mrs. Jean Heilman exercise care under her auto- circumstances when she allowed mobile to into a 200 feet careen over em- go skid, crash a collide bankment, through fence, with a tele- and come graph to the end of its violent pole, journey on side? resting its
Mrs. Heilman that knew the roads were slippery. She skidded at very beginning trip, passed signs the road her that along which warned the roads were slippery when she was aware wet, that rain falling highway was wet. actually
It has been on submitted behalf of the defendant that the accident patch was caused a of ice and by that no way was for her to that ice know would on the appear The fact that highway. winter with all its forces had taken glacial over the countryside (it was December 29th) certainly would suggest Jack possibility Frost and his sprightly crew be In might glazing roads. ice had been dis- fact, at a point covered described Eden as Park Boulevard (some Walnut Street 3 or 4 miles back from the scene of the accident.) John R. witness Brennan, called testified to defendant, ice on noticing the road “about yards from the upset car.” He also testified that the ambulance which called for the injured skidded because of ice on the road.
But if even to be were the defend- stipulated ant not conscious of ice was encrusted to the cartway liability; con- her from absolve would negligence
trolling not the the case was element presence slipperiness non-presence or but the ice, on the road. It could be that it was water well into automobile the ice which converted the defendant’s or it could the automobile would have be that sled, presence road ice. The skidded even without slippery signs proclaimed that the road be would gen- plethora wet and there evidence slipperiness eral road. Lundin testified: Mrs. you “Q. Did the condition of road know what very slippery.” when it A. the road was wet? Yes, Kathryn “Q. Miss Tremont testified: What the con- *7 dition of it it is A. it is one of those wet? Well, slippery.” hard black surface it is John surfaces, roads, “Q. R. Brennan testified: That road on was wet night slip- Q. A. this accident? Yes. That road is pery A. Yes.” when wet? person willingly speeds
The un- who over known slippery road is bound for court or a tractionable, hos- pital, majority opinion or both. The how- contends, speed that the ever, Mrs. Heilman’s car is irrele- speed vant to the but how can case, be ruled out? pace Is 35 miles hour such a snail’s it can provocative never be of accident? It is a self-evident given observation that, 10 circumstances, even miles (For negligence. an hour can be evidence instance, churning splashing and over flooded road at 10 miles per easily incident.) hour could be causative tortious
The touchstone which is determinative the issue simple in this case is the Did one: the defendant exer Every cise care under the circumstances? considera prudence tion dictated the utmost caution and the speed possible. night soggy slowest The was rain with fog, cloaking highway and with visible and invisible ignored warnings menace. driver her own only through her not pressed upon which com of her admonitions but through senses verbal “take Mrs. Heilman urged Lundin Mrs. panions. The defendant herself it to take it slow.” easy, She testified: conditions. of the slippery conscious road “Q. blacktop Do you know whether Q. When I it . . . A. suppose when wet? slippery anything Street was reached Walnut you we felt Well, car? A. concerning your happened It just a skid. it wasn’t much sort of but slide, road.”* could be the wet from Mrs.
In traction underwheel, the insecure spite Hill Dewey Heilman and tortuous sped steep down at the intersection road and entered into a curve sharp driving Boad the Buena Vista-Lovedale Hollow under the hour. Was care proper 35 miles this per cir- held that amid repeatedly circumstances. We have can kind determine only cumstances used care. the defendant proper whether Pa. Transit In Eisenhower v. Hall’s Motor Co., a per bemay this Court said: what “Accordingly, and and under place missible rate at one time on other improper be given may wholly circumstances n different occasions under circumstances, *8 it has cases as unusual conditions existed, where, here, been held that the as to whether question uniformly the the . .” speed was excessive was . fury for at
It from the unfolded they was obvious as facts, did control of the that Mrs. Heilman not have trial, her car. In Knox v. 301 Pa. we said: Simmerman, 1, 6, car be- places “The is excessive whenever it the speed the control the and this is especially yond driver, or rounding so obstruction curve.” passing * throughout, mine. Italics
In v. 345 Pa. where 258, 261, 262, Master, Kotlikoff the facts were to this bar, somewhat similar those in Court for the said: affirming plaintiffs, “Other than at ice the highway free of but wet miles in both directions .... As an for alternative ground aside the it is setting verdicts, contended that proximate the accident cause was not speed excessive of the Goldstein truck, but condition icy which it highway, urged constituted an independent intervening agency over which the driver of the truck no had We control. are opinion in that is merit neither these contentions and that the action of the court below must be sustained.”
In Knoble v. Ritter, Superior Pa. Ct. 149, 154, the legal point proposed was sufficiently analogous to the one at hand to quotation warrant here: “The contention of defendant injuries is that plaintiffs’ property damage were caused of an intervention independent agency over which no defendant had con- ice on the trol, wit, But highway. we think evidence was sufficient for the jury find skid- ding car resulted from her own negli- so and, having gence, jury found, she was liable for the consequences.”
In the of all light the acci- circumstances, dent in this If case foreseeable? it the defend- was, ant liability. cannot avoid Lundin Mrs. is entitled to a determination of that but question, yet as has not been resolved. the withdrawal of By the question of from in court below, now by this Court life to a dead and giving buried motion for instructions, Mrs. Lundin binding has effect been denied her day court.
I dissent.