196 A. 823 | Pa. | 1937
Appellee's husband, William C. Rowland, Jr., received fatal injuries when the automobile he was driving collided with the metal operator's platform which projected from the sides of appellants' concrete mixer parked in city street. She instituted a suit and recovered a verdict for his death arising from the alleged negligence of defendants, and from the judgment entered thereon defendants appealed. In their behalf it is claimed that the deceased was guilty of contributory *74 negligence and that no evidence of their negligence was shown.
The accident occurred early in the morning on July 20, 1934. Rowland was returning to his home alone, in a borrowed car, from a dinner party he had attended. He was proceeding north on Frankford Avenue, in Philadelphia, a street 64 feet wide from curb to curb. Double trolley tracks occupied the center of the street, leaving a space of about 24 1/2 feet on each side between the outermost rail and the curb. Appellants had for some time been conducting paving operations on Frankford Avenue, south of the point of collision, using a large concrete mixer which was something over 8 feet in width. As operations progressed north on Frankford Avenue the mixer followed, until on the night of the accident it was left parked alongside the east trolley track, at a distance of two feet from the track and between it and the curb, a short distance south of the point where Hartel Street enters from the east. The deceased attempted to drive his car between the mixer, on his left, and the curb, on his right. In doing so he sideswiped a projecting shelf or platform, on which the operator of the machine stood, which protruded some two feet from the side of the concrete mixer at the height of about three feet above the ground. This platform was only an inch or so thick and was supported by brackets beneath it and attached to the body of the mixer. Appellee's evidence was to the effect that the automobile was proceeding at between 25 and 27 miles an hour and stopped within a few feet after striking the platform; and that the only contact made with the body of the mixer was after the first instant of the collision, when the car was deflected to the left and came to rest against the mixer. The only street lights in the vicinity were on the other side of Frankford Avenue at a distance of perhaps 100 feet, so that the jutting portion of the mixer with which the car collided was thrown into shadow, as were the supports on which the shelf or platform rested. *75
The negligence averred, and the basis of appellee's case, was the failure of appellants to light the concrete mixer properly, so as to prevent its being a hazard in the public highway at the time. Appellants charge that notwithstanding the defective lighting of the mixer, the deceased should have observed it in time to avoid the collision. Appellee's only eyewitness, the driver of a milk truck which was following close behind the car driven by the deceased, testified there were three or four lighted red lanterns on the mixer at the time, one on the end of the "boom" which pointed in the direction from which Rowland was driving, and three on the body of the mixer. There was also a lamp on the step or platform which Rowland's car struck, he said, but it was not lighted and had no globe or glass shade; immediately after the accident, as he ran up to assist Rowland from the car, he felt the wick of the lamp and found it cold. There was no shattered glass scattered around it to indicate the lamp had been extinguished and broken by the force of the impact.
The fact of there being no light, as indicated, if believed by the jury, as apparently it was, supported the charge of appellants' negligence. It is of no moment that the evidence submitted by appellants was contradictory. Its credibility and weight were for the jury, and the latter was entitled to find that appellants had properly placed lights on the body of the mixer itself, but failed to light the platform which projected into the path of Rowland's oncoming car. The hazard thus created was even more dangerous in character than if no lights at all had been placed on the mixer. As Rowland approached the machine, his attention was centered on the mass of the object blocking the highway, the broad outlines of which were disclosed by the assemblage of lights strung about it. He sought to pass to the right, where he believed an unobstructed passage of approximately 10 feet in width lay open, between the mixer and the curb. Had the unlighted platform not been there, *76
this way would have been open and the collision would not have occurred. The situation as it appeared to him invited the action he took and this action unfortunately resulted in his fatal injury. As it would have been negligent for appellants to leave the mixer unlighted altogether, so it was negligence to leave the dangerous projection concealed in darkness. In this aspect the case resembles the situation in Clamper v. Phila.,
To fortify this conclusion in the present case, it is necessary to note the testimony of only one other witness, a police officer stationed in the vicinity who, although he did not see the collision, heard the impact of it and hurried to the scene. As he was helping Rowland, who was conscious, from the car, the latter asked the officer what he had struck, and, on being told that it was a concrete mixer, replied: "No, I passed that," and stated he had seen no light on the projecting step. This furnishes additional proof that inadequate lighting of the obstruction was the proximate cause of the accident. *77
To the charge of Rowland's contributory negligence, it is sufficient to say that the unlighted step or platform was not so substantial an object, under the conditions indicated by appellee's evidence, that Rowland's failure to see it and then to take appropriate action convicts him of negligence as a matter of law. The applicable provision of the Motor Vehicle Code in force at the time of the accident (Act of May 1, 1929, P. L. 905, sec. 803; 75 PS sec. 353) required only that his headlights be of sufficient strength "to render clearly discernible all vehicles, persons or substantial objects" within the specified distance ahead. From the evidence the jury was entitled to find that the projecting platform did not fall within this category and was not clearly discernible in the darkness under any conditions of lighting. This view of the case distinguishes it from Stewart v. P. R. T. Co.,
The situation in the present case was not dissimilar from that which confronted the plaintiff in Lane v. E. A. Mullen,Inc.,
The remaining question is raised by the separate appeal of Vito A. R. Canuso, one of the defendants, who claims that he was not a partner of his father and brother, the other appellants, who admittedly were engaged in the paving construction and operated and controlled the concrete mixer. Vito filed an affidavit of defense specifically denying the partnership relation as of the date of the accident and denying that the concrete mixer was operated or controlled by him or his agents. Plaintiff's only proof on the point was to introduce in evidence a certificate of the Secretary of the Commonwealth *79 certifying that the three defendants, including Vito Canuso, had filed a fictitious name registration in that office dated January 10, 1929, under the Act of June 28, 1917, P. L. 645, as amended (54 PS sections 21 et seq.). This set forth the style of their business as Francis A. Canuso Sons. It was further elicited by cross-examination of Canuso, Sr., that Vito had signed a similar registration which was filed in the prothonotary's office on December 31, 1928, when he was eighteen years of age. Neither of these registrations had been cancelled prior to the accident, as might have been done under the Act of June 20, 1919, P. L. 542 (54 PS sec. 25). Appellant rebutted this evidence by the testimony of his father to the effect that his son Vito had never been a partner or received a share of the profits, but was merely an employee not entitled to execute contracts or other documents for the firm. All the partnership contracts, including the one covering the work being done on Frankford Avenue at the time of the accident, were executed in the firm name of Francis A. Canuso, Sr., and Jr., doing business as Francis A. Canuso Son.
Vito Canuso's point for binding instructions in his favor was refused. We think in this the court below erred, and should have withdrawn from the jury the question of his liability. The purpose of the Fictitious Names Act was to protect those who deal with persons carrying on a business under an assumed name, and to enable them to know with whom they do business: Lamb v.Condon et al.,
How did plaintiff meet her burden of proof? Against the other two defendants she relied upon their admission, by reason of their failure to file an affidavit of defense, that they controlled the mixer when the accident occurred. She proved an admission by Vito Canuso made in 1929 that he was a partner of Francis A. Canuso Sons at that time. She produced no evidence, as against Vito, that Francis A. Canuso Sons were responsible for the accident, or were in charge of the mixer at the time. His admission, made in 1929, that he was a partner of that firm was not an admission that the firm of Francis A. Canuso Son, which had the contract to do the work, was a partnership with which he had any such connection as to permit liability to be imposed upon him. The similarity in names, which in many instances might suffice to take the question to the jury, is obvious, but where the liability is in tort such a similarity should not be allowed to overcome a distinction clearly established. All the other evidence submitted on Vito's behalf indicated that the parties in control were his father and brother only. To fix liability on Vito, plaintiff had the burden of proving that he participated in the tort; this she failed to do. The judgment against him cannot stand.
The judgment is affirmed as to defendants Francis A. Canuso, Sr., and Francis A. Canuso, Jr.; as to defendant Vito A. R. Canuso, the judgment is reversed and is here entered for him, n. o. v. *81