145 A. 81 | Pa. | 1928
Argued December 5, 1928. These three appeals by defendant from judgments for plaintiffs, all result from one automobile collision and will be considered together. Broad Street, extending through Philadelphia in a northerly and southerly direction, is at right angles with, and the eastern end of, Sparks Street. The width of the cartway of the former is sixty-nine feet and of the latter forty feet. Sparks Street approaches Broad Street on a three per cent descending grade and from there north the latter is on a like descending grade. A three-story apartment house stands on the northwest corner of Broad and Sparks. The traffic on the west side of Broad Street moves southerly and on the east side, northerly.
The evidence was conflicting, but, in view of the verdicts, we must accept that most favorable to plaintiffs. So doing, it appears that at about noon of January 3, 1927, defendant's two and one-half ton auto truck, loaded with five thousand pounds of dressed beef, was driven down Sparks Street and onto Broad at the speed of at least twenty miles an hour, making a sharp left-hand turn (to the north) in the lane of southbound traffic, where, before reaching the center of Broad Street and at a point some fifty feet north of the center of Sparks Street, it collided with a southbound Ford car, driven by Mrs. Wilson, the plaintiff, and thence moved on in a semicircle until it landed forcibly against another Ford car, standing by the west curb of Broad Street, about ninety feet north of the north line of Sparks Street. Plaintiffs' car was wrecked, their seventeen months' old child killed and Mrs. Wilson permanently injured and disfigured. *173
There was ample evidence of the truck driver's negligence. It was his duty, on approaching this intersection with his heavily-laden truck, to have it under perfect control so that he could stop at the shortest possible notice. Furthermore, coming down into Broad Street at twenty miles an hour was a rate of speed incompatible with public safety. The direction the truck took with the distance it ran after the accident was evidence tending to show both excessive speed and lack of control.
Probably the truck driver's most cardinal fault was making the left-hand turn on the west side of Broad Street against the current of traffic, without keeping in line of the south half of Sparks Street until he had passed the center of Broad. This was in direct violation of the Act of June 30, 1919, P. L. 678, as amended by the Act of June 14, 1923, P. L. 718, section 25 of which (P. L. 748) provides, inter alia, "At the intersection of public highways, the operator of a motor vehicle shall keep to the right of the intersection of the centers of such highways when turning to the right, and shall pass to the right of such intersection before turning to the left." Again, while driving on the left side of a highway is not negligence, especially in the open country (Bloom v. Bailey,
The question of contributory negligence was also for the jury. True, the truck approaching the intersection from the right had the right of way at the crossing (see section 25 of the Act of June 30, 1919, P. L. 678, 695, amended by section 25 of the Act of June 14, 1923, P. L. 718, 748), but that rule could not apply here for the accident happened in Broad Street, north of the intersection. Mrs. Wilson was driving on her own side of the street, some twenty to thirty feet from the west curb, and not bound to anticipate that some one would suddenly block her path. The truck, going at twenty miles an hour, was not in her view over three seconds before *174
the accident, and for only a fraction of that time did the truck appear to be turning against her. Whether in that brief time Mrs. Wilson could have changed her course to the right and escaped the collision is problematical, and was for the jury. "Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to apprehend the situation and to act according to the exigency: Eastburn v. United States Express Co.,
The most serious feature of the case is the amount recovered. The jury awarded Mrs. Wilson $45,000, her *175
husband $10,000, on account of her injuries and $5,000 for the death of his infant son. The court in banc caused a reduction of the first to $35,000, the second to $5,000 and the last to $3,000. Appellant earnestly contends that the judgments first and last above stated are still grossly excessive. While our right to grant relief in such cases exists, it is limited. In the language of Mr. Justice SADLER, speaking for the court, in Gail v. Phila.,
The injuries to Mrs. Wilson were so grave that we are not shocked by the amount the court in banc permitted her to recover. She was thrown from the car striking her head and face on the pavement with such force as to *176 fracture her skull, also to break her jaw, the bones in her nose, the orbit of one eye and to seriously injure her cheek bone. Her face was bruised and so cut in numerous places as to require sutures. In fact, her face was literally crushed and permanently disfigured. Her right eye was so seriously hurt as to be permanently out of alignment, resulting in double vision; to overcome which she is compelled to bend her head forward. Some of her teeth were ruined and, although receiving the best possible expert surgical skill, she is unable to normally open her jaws and when they close the teeth strike end to end, with no overlapping of the upper jaw, as formerly. This prevents proper mastication of food. The nerves leading to her nose and mouth were so completely crushed and injured as to cause the loss of her sense of smell and taste. In addition her left arm was broken, her legs cut and bruised and she sustained other minor injuries, was confined in the hospital for six weeks and disabled for some time thereafter; in fact, she has never fully recovered her strength. Before the accident she was a beautiful young woman (thirty-four years of age) in perfect health, but as a result of the injuries is greatly impaired physically and a nervous wreck, with her face permanently disfigured. Ever since the accident she has endured and will continue to endure pain, suffering and inconvenience. We are not inclined to encourage extravagant verdicts, but under the circumstances here presented we are not prepared to declare $35,000 so grossly excessive as to warrant our interference.
No complaint is or can be made to the $5,000 allowed the husband for the injuries to his wife. In truth, he has already expended more than one-half that sum because of such injuries. The $3,000 for the death of the seventeen months' old child, however, is not based on any proof and cannot be sustained. The recovery permitted in such case is limited to the financial loss sustained. The only evidence here as to that is the doctor bill, funeral expenses, etc., amounting to $365. In fact, *177
appellees' counsel frankly stated at bar that the situation of the parents was such as to preclude the probability that the child, had he lived, would have become a wage earner during his minority. We are mindful of the cases which hold that the health of the child and the situation in life of the parents may afford proof of the probable prospective earnings of a child (Loughran v. Thomas Bros. Co.,
Plaintiffs' statement avers, inter alia, that Mrs. Wilson, "sustained a fractured skull, concussion of the *178
brain, a broken nose, a fracture of the right arm, a fractured jaw, crushed face, injuries to her eyes, contusions and lacerations in and about her head, scalp, face, body and both legs, injuries to her mouth and teeth, a paralysis of the right side of the face and internal injuries." The loss of smell and taste were the natural result of some of the injuries complained of and did not require special mention in the pleadings. An averment of injury to the side covers the fracture of ribs: Koenig v. Quaker City Cab Co.,
The extent of the truck driver's injuries had no bearing on the case and the proposed medical evidence relating thereto would have served no useful purpose. Evidence was received as to his ability immediatly following the collision, and his condition thereafter was immaterial. It may be conceded that the collision caused him to lose control of the truck.
During the trial, the Evening Bulletin, a public newspaper in Philadelphia, contained some account of the case, including the amount ($75,000) named in Mrs. Wilson's statement of claim. The next morning the matter was called to the attention of the trial judge, when four of the jurors said they had read the article but that it would not influence their verdict. The trial judge cautioned the jury to entirely disregard it, but refused to withdraw a juror and continue the case. This was a matter largely within his discretion, which was wisely exercised. See Com. v. Valverdi,
At the instance of defendant, an occulist examined Mrs. Wilson's eyes during the trial and then was not called as a witness. There was no error in permitting her in rebuttal to mention this examination. The neglect of appellant to call its own expert might permit the jury to infer that if called his testimony would not aid the defense. See Steel et al., Exrs., v. Snyder et ux.,
Plaintiffs' witnesses made a very plain case of negligence, hence it was not error for the trial judge to remark to the jury that if they believed such evidence they would likely conclude that the defendant was guilty of negligence. This left the question to the jury and was followed by a remark to the effect that if the jury believed the defendant's witnesses, there could be no recovery.
In appeal No. 275, January Term, 1928, the judgment in favor of Mrs. Madeline A. Wilson is affirmed. In appeal No. 277, January Term, 1928, the judgment for $5,000 in favor of John H. Wilson is affirmed, and in appeal No. 276, January Term, 1928, the judgment for $3,000 in favor of John H. Wilson is reduced to the sum of $365, with damages equal to six per cent for delay since January 7, 1927, and as so modified is affirmed.