Opinion
May 5, 1942.
July 23, 1942.
Negligence — Automobiles — Contributory — Causation — Restatement, Torts.
1. In an action of trespass, the burden is on the defendant who avers that claimant was contributorily negligent to prove not only that plaintiff violated a duty but that, save for the violation, the accident would not have happened, that is, that plaintiff's negligence was the proximate cause of the accident.
2. Restatement, Torts, sections 465 and 432(1), cited.
Appeal, No. 33, April T., 1942, from judgment of County Court Allegheny Co., 1940, No. 375, in case of H. Ellwood Rankin v. Frederick J. Carroll.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, RHODES, HIRT and KENWORTHEY, JJ. Judgment affirmed.
Trespass for property damage. Before SOFFEL, J.
The facts are stated in the opinion of the Superior Court.
Verdict and judgment for plaintiff. Defendant appealed.
Error assigned, among others, was refusal of judgment n.o.v.
Edward J. McGinness, for appellant.
Paul W. McAllister, John H. Sorg and Ralph J. McAllister, of McAllister McAllister, for appellee, were not heard.
Argued May 5, 1942.
This case involves a head-on collision between two automobiles; one driven by plaintiff, the other by defendant. Defendant has appealed from the refusal of his motion for judgment n.o.v. His sole contention is that plaintiff was guilty of contributory negligence as a matter of law.
The accident happened about eleven-fifteen P.M., January 12, 1940, on the highway between McKeesport and Irwin. The highway is twenty feet in width, with eighteen inch berms. Plaintiff testified that he first noticed the headlights of defendant's car coming toward him on the wrong side of the road about six hundred to seven hundred feet away. Defendant continued on the wrong side of the road until the collision occurred. When he first saw defendant's car, plaintiff was traveling about forty to forty-five miles per hour. He took his foot off the accelerator and "I kept edging over to my right, and knowing the road so well, [he had traveled it once a week or once in two weeks for the past eight years] I knew that I could not go too far, because of a ditch over there, but I got over as far as possible. I also knew there was a culvert there, and in back of this culvert there was a deep ditch, and I knew that I could not go down in there." He saw the culvert when he was within twenty-five or thirty feet of it; by that time he was traveling about ten or fifteen miles per hour. To avoid hitting the culvert, he turned slightly to the left into the road. Just as his right front fender grazed the culvert, defendant's car hit his left front wheel, damaging the entire left side.
Defendant argues: (1) That plaintiff, after seeing defendant's car approaching him on the wrong side of the road, had an absolute duty to stop, and (2) that his failure to stop when he saw the culvert was a violation of the Act of May 1, 1929, P.L. 905, Article X, Sec. 1002 as amended June 27, 1939, P.L. 1135, Sec. 23, 75 PS 501, which requires an operator of a motor vehicle "to bring the vehicle to a stop within the assured clear distance ahead."
It is not necessary to deal specifically with either of these contentions. The answer to both is that the jury could have found from the evidence the plaintiff's failure to stop, even if a breach of duty, was not a causa sine qua non. See Restatement, Torts Secs. 465 and 432(1). When plaintiff turned slightly out on the road to avoid the culvert, it is not clear how far out he turned. Since the right front fender scraped the culvert, which was beyond the berm, it is reasonable to assume his right wheels were still on the berm. The burden was on defendant to prove not only the plaintiff violated a duty, but that, save for the violation, the accident would not have happened; in other words, that plaintiff's negligence was the proximate cause of the accident. Little v. Straw, 326 Pa. 577, 192 A. 894.
Judgment affirmed.