Opinion by
Early in the evening of January 19, 1949, plaintiffs were riding in an automobile owned by plaintiff Santore, and driven by plaintiff Attilio Marino, when it collided with a locomotive owned and operated by defendant, Reading Company. An action in trespass was brought against defendant-company in which San-tore claimed damages for injuries , to his person and his property, while plaintiffs Attilio and Joseph Marino each claimed damages for personal injuries arising out of the accident. At the conclusion of its case defendant presented a point for binding instructions as to each plaintiff, which was refused; the court permitted the issues of defendant’s negligence, the driver’s contributory negligence, and the existence of a bailment of the automobile by the plaintiff-owner to the plaintiff-driver to be decided by the jury. The jury returned a verdict for defendant as to the driver, Attilio Marino, a verdict in the sum of $2,500 for the owner, Santore, and a verdict for Joseph Marino in the sum of $100.
Defendant filed a motion for judgment n. o. v. as to the plaintiff-owner but had judgment entered on the verdict as to the plaintiff-driver. This appeal followed the court’s dismissal of defendant’s motion.
. The basic question was recently before the Supreme Court in Beam v. Pittsburgh Railways Co.,
, However, before taking up that question, we must first consider a procedural question raised in this appeal. . Defendant’s point for binding instructions was phrased in general terms as follows: “Under all the evidence the verdict as to each plaintiff must be for the defendant.” It has repeatedly been held that a court cannot enter judgment n. o. v. except in a case where, at the close of the trial, binding instructions would have been proper. Maiden v. Philadelphia Transportation Co.,
Under the trial evidence the contributory negligence of the driver-plaintiff was so manifestly clear as to require its declaration as a matter of law. His own testimony discloses that immediately preceding the accident the automobile was traveling east in the right hand lane of the Industrial Highway, a four-lane highway, at a speed of 35 m.p.h. When the automobile was 15 feet from the point where the single track of defendant crosses the Industrial Highway, he first observed defendant’s locomotive moving into the crossing - but could not avoid the collision. He testified that he traveled the Industrial Highway eight or ten times a year and that he was familiar with the existence and location of this crossing but on the occasion in question failed to stop. The only justification offered for his
There can be no question that the driver violated the rule requiring the operator of a motor vehicle to stop, look and listen before entering upon a railroad track, a rule which applies to sidings as well as main tracks, the violation of which is more than evidence • of questionable negligence; it is negligence per se. Highton v. Pennsylvania Railroad Co.,
Returning to the question of the imputation of the contributory negligence of the driver to the owner-occupant, we are guided by the principles enunciated by the Supreme Court in Beam v. Pittsburgh Railways Co., supra (pp. 370, 371), the product of a careful review and analysis of the authorities. Among those principles are the following: “(1) The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver’s negligence. ... (2) There is a presumption, in the absence of any evidence to the contrary, that an owner present in his car has power to control it: . . . (3) The test of the owner’s liability is the right of control, not whether he exercises it or not: ... (4) In the absence of evidence to the contrary, the legal relation between the owner seated in his car and the person whom he has permitted to drive it is that of principal and agent or master and servant and therefore he is not only liable for damages caused to a per
Applying the aforesaid principles to the present case, it is manifest that recovery by the plaintiff-owner against the Reading Company is impossible. All that the record discloses is that the driver, Marino, who had to go to Chester to see about a job, received permission to use the owner’s two-week-old Cadillac for that purpose. However, the owner went along — for the sole reason that the car had previously been driven but 238 miles and, in his own words, “I didn’t want him [Marino] to chase it. ... I wanted to check him that he didn’t go too fast.”
Santore’s own testimony establishes the fact that he accompanied the driver of his car for the express purpose of controlling its operation, and he cannot be heard to say his words and conduct indicated that the driver was to act entirely on his own responsibility and free of supervision as if the owner were absent. Under the circumstances the question as to whether he surrendered his right of control was not for determination by the jury, as it ordinarily would be, but for the court. “Only if . . . [Santore] had entirely relinquished his right of control as owner and deliberately made himself a ‘guest’ in his own car would the principle of imputability of the driver’s negligence have become inapplicable. But . . . there is no evidence whatever to permit of such a finding.” Beam v. Pittsburgh Railways Co., supra (p. 373).
The right to control the operation of the vehicle is the determinative factor in these cases. Where the
The judgment as to the plaintiff-owner, James J. Santore, is reversed and here entered for the defendant. ..
Notes
Defendant’s negligence is assumed for present purposes, it having been found as' a fact-Usy the' jury and not questioned in this ■appeal;