98 Pa. Super. 574 | Pa. Super. Ct. | 1930
Argued March 10, 1930. This appeal is by the defendant from the judgment entered upon a verdict recovered by the plaintiff in the sum of $2,500 as damages for personal injuries suffered by him when struck by an automobile owned by the defendant and driven by one Guise. It was averred in the statement, and denied in the affidavit of defense, that at the time of the accident Guise was the agent and servant, and engaged in the performance of the business, of the defendant. The trial judge submitted to the jury in a clear and adequate charge, of which no complaint is made, the questions of the negligence of the operator of the car, the contributory negligence of plaintiff, and whether the driver was engaged at the time upon the business of the defendant.
The assignments complain of the refusal by the trial judge of defendant's point for binding instructions and the subsequent overruling by the court, in banc, of his motion for judgment n.o.v.
The testimony was irreconcilably conflicting but, in view of the verdict, all the evidence and proper inferences therefrom favorable to the plaintiff must, under the familiar rule, be taken as true, and all unfavorable to him rejected: Hunter v. Pope,
Viewed from this standpoint, the jury could reasonably have found these facts: The accident happened on the afternoon of August 21, 1928, in the Borough of Kulpmont. Chestnut Street is one of the principal east and west streets in that borough and is intersected at right angles near the scene of the accident by Eighth Street, running north and south. A single street railway track is located in the center of Chestnut Street and there is a suspended traffic light above *577 the center of the intersection of Chestnut with Eighth Street. Plaintiff was driving east on the south side of Chestnut Street toward Eighth and, desiring to visit a store at or near the northwest corner of those streets, parked his car along the south curb of Chestnut approximately thirty-five feet west of Eighth and started diagonally across the cartway of Chestnut toward the store. As plaintiff parked his car the light was green, indicating "Go," for traffic on Chestnut Street but, as he stepped from his car, it changed from green to amber, indicating "Caution" and requiring, under the circumstances, the stoppage on Chestnut Street of traffic that had not already entered upon the intersection of Eighth. Upon the changing of the light from green to amber, two automobiles proceeding west on the north side of Chestnut Street between Seventh and Eighth Streets stopped on the east side of Eighth in obedience to the signal. Plaintiff's version of the accident reads: "Q. Tell the court and jury what happened. A. As soon as I got off the [car] door the light was yellow and I seen two or three cars stopped on the other side toward Mount Carmel [east]. Q. That is on the other side of the Eighth Street intersection? A. Yes, sir. I saw these two cars and I looked and I saw them two cars and I looked towards Shamokin [west] to see if anybody was coming on my back. I had to go across the street. The time I left the door, I walked a step or two and I turned my head and looked toward Mount Carmel again and I was knocked down and I could say no more."
The car of the defendant, operated by Guise, immediately prior to the happening of the accident was proceeding west on Chestnut Street in the block east of Eighth. Upon approaching the two automobiles which had stopped east of Eighth Street in obedience to the traffic signal, Guise, instead of taking his place behind them in the halted traffic, disregarded the traffic *578 signal and, at a speed of from twenty-five to thirty-five miles per hour, drove around them to the left, over and south of the street railway track and across Eighth Street, striking the plaintiff while he was still on the south side of the street railway track. There was therefore ample evidence of the negligence of the operator of the car. His negligence was not seriously disputed at the argument but it was contended that the trial judge should have given binding instructions in favor of the defendant because the evidence also showed (a) that plaintiff was guilty of contributory negligence as a matter of law and (b) that the operator of the car was not engaged upon the business of defendant at the time of the accident.
On the first proposition we think this case is ruled in principle by the recent case of Newman v. Protective Motor Service Co.,
The plaintiff here was not bound to anticipate the sudden and negligent darting of defendant's car from behind the automobiles waiting for the signal to proceed (Clark v. Horowitz,
Upon the other contention of defendant the testimony was to the effect that Nevius, the owner of the car, operated the American Stores at Ninth and Chestnut Streets and had instructed Guise, who frequently drove for him, to take the car from that store to the Bridy Motor Company at Mt. Carmel, several miles east of Kulpmont, for repairs to the engine, and to return it to the store. Nevius testified that the accident happened when Guise "was coming back to the store" about two and one-half hours later. On his way to Mt. Carmel Guise left the main highway at a point east of Kulpmont and drove north about *580
one mile to Richards Tunnel where he met a friend, Stuller, and told him he would return for him at quitting time. Guise then returned to the direct route to Mt. Carmel and proceeded to the Bridy Motor Company garage. Upon his return journey Guise again deviated from the direct route at the same point, went to Richards Tunnel, picked up Stuller, returned to the point of deviation and proceeded on the direct route toward the owner's place of business; the accident occurred while he was on the direct route and before he had reached the store. Guise stated in his direct examination that he "was going home" and "went up for Stuller." Subsequently he stated that Stuller lived on Chestnut Street several blocks west of the store and that he was taking him home at the time of the accident. The trial judge charged: "It will be for you to determine whether he was returning to the store of this defendant after having been to Mount Carmel where he had been sent by the defendant; because, if he was returning to the store of the defendant then properly he was engaged upon the business of Mr. Nevius, the defendant. If, however, you conclude that he was taking Stuller home, then he was not upon the business of this defendant, and the plaintiff cannot recover in this action." This instruction was certainly as favorable to the defendant as he could expect. Under all the testimony the question was one for the jury. From the authorities, and particularly Webb v. North Side Amusement Co.,
Judgment affirmed.