374 Pa. 485 | Pa. | 1953
Opinion by
Edith Polando, 33 years of age, single, living in Waltersburg, Fayette County, was employed as a waitress in Elks Park, Henry Clay Township, also in Fayette County. She worked every day but Monday. On the afternoon of Monday, March 25, 1946, she visited Uniontown, six miles distant from her home, to shop with her sister Mary Polando and to call on a friend, Mrs. Corrado. At the end the day, Mrs. Corrado accompanied her to the West Penn Bus Terminal where she was to take the 9:40 p.m. bus for her home. The bus, however, was late and did not arrive until 10:20. She boarded it and occupied the first seat, across the aisle from the bus driver, Eddie Eakle, with whom she had a speaking and friendly acquaintance.
Because of his tardy arrival at the terminal, Eakle tarried only 5, instead of the usual 15 minutes, and upon leaving the terminal immediately went into high speed, explaining to Miss Polando that he had “to make up time.” It was a clear night and the weather dry as the bus, now travelling northwardly on Route 51,
Edith Polando in the front seat was twice thrown with violence against the front of the bus, the windshield and to the floor; once at the time of the collision with the Ford and the second time when the bus hit the embankment. She brought suit against the bus company for injuries sustained in the double crash, and at the trial which took place in April, 1949, the jury awarded her a verdict of |25,000. The defendant moved for a new trial and while the motion was pending, the plaintiff died on August 13, 1950.
After Edith Polando’s death, an autopsy was performed and the cause of death was said to be “hypernephroma or renal tubular adenocarcinoma, with multiple metastases throughout both kidneys, both adrenal
At the second trial where the testimony of the deceased Edith Polando was read to the: jury, the trial judge instructed the jury that if they found for the plaintiff ■ they could only award damages in the sum of 614^. The jury returned such a verdict. The plaintiff moved for a new trial which was refused.. The defendant moved for judgment n.o.v. which was granted, and the plaintiff has appealed.
A review of the long record which (with two trials) embraces some one thousand typewritten pages, establishes that the judgment n.o.v. was not warranted by the evidence, nor was there any support for the alternate mandatory verdict of Q1/^. There was a vast quantity of evidence, both, medical and lay, that Edith Polando had sustained serious physical injuries as the result of the bus collision and, regardless of the cause of death more than four years later, she, and then her estate, was entitled to a recovery for these injuries if they were caused by the negligence of the defendant company. '
Two juries have now found that the defendant, company was negligent and we are satisfied that there is-adequate credible evidence to support that verdict. In his charge to the jury the"Trial Judge said: “The law of Pennsylvania known as the Motor Vehicle Code, pro-: vides in part: ‘Upon' all highways of. sufficient- width, ex-eept for one-way -streets; the'driver of: a, vehicle shall drive the same upon the. right .half of .the:highway) except when overtaking axid passing another vehicle:’
.“And., further: .‘The, driver ...of .a .vehicle shall-not drive to the left side of the center line of a highway
This, of course, is a correct statement of the law and the jury dutifully assumed the responsibility of determining from the testimony whether the left side was “clearly visible” and “free of oncoming traffic for a sufficient distance ahead to permit” the bus to make the “passing ... in safety.”
Nucci Boss was the owner and driver of the car which the bus passed as it approached the Yance Mills crossing. He testified that the bus sped by him with such velocity that it “shook” him. Asked for his judgment as to the speed in miles per hour, he replied: “Well, the way it rocked my car, I would say it was doing 60 or 65.”
For a bus laden with human freight to pass a car at night on a two-lane highway at 60 or 65 miles per hour could well, under the circumstances, be regarded as gross negligence, especially when associated with the fact that the bus driver did not assure himself of a clear distance ahead before he committed himself to the always hazardous act of going to the wrong side of the road. In America, travelling on the left side of the road is fundamentally improper. The State permits the occasional use of that lane because of the exigencies of travel but authorizes it only with the understanding that one will enter that hazardous territory with his eyes on the road, his mind on the job, and his hands and feet jjrompt to execute a safe maneuver over a course already formulated. Anything less than such conduct is blameworthy.
In this case the bus driver entered into the imperilling lane without the caution which the physical facts
Anyone today who approaches a curve, which curtains off the traffic on its far side, does so with the knowledge that the next car appearing around that curve may be the wrecking- truck to carry him off the highway. .....
The lower court in its Opinion stated that the proximate cause of the accident was not the bus overtaking the northbound car but the sudden appearance of the Ford which was being negligently operated on the highway. Assuming negligence on the part of the Ford, this did not excuse the bus driver who was on his left side of the highway when a reasonably prudent person would not have been there at the time. Ross testified that the four headlights (two of the overtaking and two of the overtaken northbound cars) flashed in his-vision-immediately after the bus had passed him. He said it “all happened in a split second, just ás he passed me on my left T. seen-oncoming cars.”
Miss Polando testified that the-bus driver attempted the passage-on á downgrade and . while the-.oncoming car. was in full/view. /.Since: she was sitting in the front
Further: “Q. And what was the position of the bus on the road when the collision occurred? A. It was on the left hand side of the road. Q. And when the collision occurred would you describe their location for ús with regard to each other? A. He was on the left side of the road; he was trying to swing back to his right side, and the other car was trying to get back to their left side when they collided on the left front end, bus and car.”
It is to be noted also, as an element of negligence in the case, that the driver divided the attention of watching the road ahead with the pastime of talking to his passenger: “Q. And prior to that time, Miss Polando, had you said anything or done anything? A. Yes, sir, I screamed at the driver ‘Oh, my God, you are going to hit that car.’ Q. What was the driver doing at that time? A. Looking at me, talking to me.”
Edith Polando testified that the bus never did get back over to its right side of Eoute 51. The collision occurred on the left side, the Ford car came to a stop on that same side of the road, the bus after travelling 600 feet also came to rest on the southbound side. Of course, Eddie Ealde testified that the collision took
That the Ford car may have been travelling at a high rate of speed does not excuse the operator of the passenger bus. It was his duty and bounden obligation* entrusted as he was- with the lives of 35 people, not to have attempted the passing without such a clear distance ahead that he could complete the maneuver and get back to safety before any other vehicle arrived on the southbound lane. Unless Eakle failed to look ahead (and this would be negligence in itself) he could not help but see the two cars, or at least one of them, in his direct path, of travel. When he saw the onrushing headlights it was his duty to remain on the right side of the road or, if he had tentatively ventured out a short distance, to return to the right side. His failure to observe this fundamental rule of the highway and this rudimentary law of safety and self-preservation could only succeed in impressing the jury of a recklessness which easily spells out legal negligence.
The proximate cause of the accident was a question of fact, for the jury.
On the retrial of this case the jury will consider not only the question of negligence but the question of damages in the event they find for the plaintiff. At the second trial the learned Trial Judge apparently ascribed to the pathologist who conducted the autopsy a perfection in discernment and an infallibility of judgment that, is not of this world. On this pathologist’s woi^d alone the Court restricted the jury in its assessment of damages to 6%^. The pathologist himself did not claim in his behalf the impeccability of diagnosis and finality of decision the Court attached to his testi
Dr. Cornelium M. Mhley, who examined Edith Polando in the Uniontown Hospital in March, 1946, testified that the patient had suffered numerous contusions to her left shoulder, left hip and head; that there were black and blue marks over her body and that she had an injury to her spine. Her head “was drawn over to one side due to the . . . loss of cervical curvature here in her spine. She was bent over and stooped over and she couldn’t straighten out.” Although there was no fracture to her bone structure, “she had definite injury to her vertebral cartilages and then a tearing of a lot of the fibrous ligaments that join one spine [vertebra] to another spine” [vertebra]. The decedent was a healthy, robust person prior to the
With this categorical contradiction of the pathologist’s testimony, it was not for a court to say that the pathologist’s testimony was conclusive. His opinion was the opinion of an expert witness but it could not per se cancel out the history of the patient’s disabilities which began with the violence to which her body was subjected on March 25, 1946, and never abated until the day of her death.
The full extent of the decedent’s injuries resulting from the accident of March 25, 1946, was a question for the jury, taking into consideration all the evidence, both medical and non-medical.
Judgment reversed with a venire facias de novo.