Opinion
March 25, 1948.
April 12, 1948.
Negligence — Automobiles — Head-on collision.
In an action of trespass for personal injuries, in which it appeared that plaintiff, a passenger in defendant's automobile, was injured when it collided head-on with additional defendant's truck, it was Held that the question of defendant's negligence was for the jury.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 131, March T., 1947, from judgment of C. P., Cambria Co., Sept. T., 1943, No. 52, in case of Frederick E. Arble v. John Allen Murray et al. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, by McCANN, P. J., of the court below, McCANN, P. J., McKENRICK and GRIFFITH, JJ., as follows:
This is an action in trespass for personal injuries sustained in an automobile collision. The plaintiff, Dr. Frederick E. Arble, sued in trespass to recover from Dr. John Allen Murray, the original defendant, damages as a result of injuries which he sustained on October 26, 1942, at about 12:30 P. M. Dr. Murray, alleging that another person was responsible for the injuries in this case, brought upon the record by scire facias an additional defendant, namely, Paul Tarr, who was the driver of a Chevrolet panel truck which was involved in the collision with the Zephyr sedan of the defendant.
Dr. Arble, testifying in his own behalf, said that he had been associated with Dr. Murray in the treatment of a patient near St. Augustine, in this county. At the request of Dr. Murray's wife he visited this patient near St. Augustine. He had been there most of the night of the 25th of October and returned to Patton. At Dr. Murray's request he went back to St. Augustine in company with Dr. Murray and together they took care of the patient until about noon of the 26th. In company with Dr. Murray and the son of the patient Dr. Arble started back to Patton. Dr. Arble had driven to St. Augustine in his own car but he was unable to move his car to make the return trip because of the muddy condition at the home of the patient. He was returning to Patton in Dr. Murray's car when the accident took place.
Dr. Arble testified that they had driven from St. Augustine out onto the Chest Springs-Patton road, an improved highway. It had rained the night before and there had been some snow and the road was wet. He testified that shortly after they came onto this main highway, when they came to the crest of a hill on the way to Patton he saw a panel truck, which was the truck driven by Tarr, approaching them on the highway and that it was on the wrong side of the road as it rounded the curve, about one thousand or eleven hundred feet away. Shortly thereafter, seeing that it remained on the wrong side of the road, he made it known to Dr. Murray by remarking that the car was on the wrong side of the road and that something would have to be done about it. Dr. Murray heard it and admitted some remark was made about it. Dr. Arble testified that Dr. Murray drove on and slowed down somewhat. He said he was driving about sixty miles an hour but that Dr. Murray slowed down somewhat after he spoke to him. He also said that Dr. Murray was driving toward the middle of the road, more toward the middle of the road than to the side, and that he came on in that manner and was at times over the white line. He said when the other car came within a dangerous distance of the Murray car Dr. Murray turned slightly to the left toward the center of the road, applied his brakes hard and the next thing he knew there was a collision. He said that at times Dr. Murray was over the middle of the road, near the middle of the road or in the middle of the road.
Young Adams, who was in the car with Dr. Arble and Dr. Murray, testified that he saw the car approaching shortly after they passed the crest of the hill and it was then on the wrong side of the road and kept on coming on the wrong side of the road and becoming alarmed he threw himself down to the floor of the car to avoid injury. A collision occurred and he was slightly injured in the collision.
It was contended that Dr. Murray could have driven his car to the side of the road and out of the way of the approaching truck in time to avoid a collision, or he could have driven to his right into a field. There was conflicting testimony as to whether or not he could have driven with safety into the field. Some witnesses testified that the field was swampy on Dr. Murray's side of the road and that it would have been impossible to have driven with any degree of safety into the field. This testimony was denied by other witnesses, who said that the ground was hard, and safe to drive upon. There was testimony that there was an embankment at the place where he might have driven into the field near the scene of the collision. This testimony as to this embankment was conflicting also.
Dr. Murray testified in his own behalf that he was driving about thirty or forty miles an hour and that he saw the truck driven by the additional defendant about one thousand to eleven hundred feet away. He said that Dr. Arble called his attention to it. He said he saw this truck was on the wrong side of the road and he put on his brakes and slowed his car down. He testified that he was always on his own proper side of the road and never left it until he saw that the truck driven by Tarr, who was approaching him, still remained on the wrong side of the road, directly in his path. When he came to a point where he considered it dangerous he put on his brakes hard and swung his car to the left toward the center of the road to get on the other side of the road to avoid the collision. He testified he did everything in his power to avoid the accident.
Tarr, the driver of the truck and the additional defendant, denied that he was on the wrong side of the road approaching Dr. Murray's lane of traffic, and testified that Dr. Murray was on the wrong side of the road and was driving at a very high rate of speed, sixty to eighty miles an hour, more likely eighty miles an hour. The skid marks of Dr. Murray's car on the road were about seventy-five feet in length and they moved diagonally from Dr. Murray's side of the road toward the middle of the road. Tarr testified he was driving thirty to thirty-five miles an hour and on his proper side of the road.
The cars met head-on and they were both very badly demolished. Both Dr. Arble and Tarr were seriously injured in the collision.
Dr. Murray testified that he was always on his own side of the road and was never beyond the middle line until at or about the time of the collision when he tried to avoid a collision with the oncoming truck by driving toward the center of the road. Dr. Murray's testimony, if believed, indicated that he was acting in a sudden emergency and that when the emergency faced him and he knew that the driver of the truck did not intend to move to the proper side of the road he acted to save himself and his passengers.
The jury returned a verdict for the plaintiff and against both the original and additional defendants. Counsel for the original defendant moved for a new trial and for judgment n. o. v.
We are satisfied that this was a proper case for the jury. We submitted the case to the jury under a charge of which no complaint has been made. From the testimony we believe that the jury was fully warranted in returning a verdict against both the original and additional defendants. There was evidence that both of them were driving negligently and were not observing due care. There was evidence of excessive speed on the part of Dr. Murray and evidence that Tarr's truck was always on the wrong side of the road, even up until the time of the collision. We submitted the question of sudden emergency to the jury under what we believe to be a proper charge, and there has been no complaint as to that.
There is no doubt as to the status of all the parties in the case. Dr. Arble was a guest. There is no duty upon the part of a guest to warn the driver of a danger ahead unless he has cause to believe that the driver does not see it, or seeing it does not intend to take adequate measures to avoid it. Little v. Straw, 326 Pa. 577; Schlossstein v. Bernstein, 293 Pa. 245. However, it is admitted in the instant case, both by the plaintiff and the original defendant that Dr. Arble did call Dr. Murray's attention to the approaching car, — in other words, warned him of the danger. As we said heretofore, we instructed the jury properly upon the question of sudden emergency and, of course, this sudden emergency must not have been caused by the negligent act of the one who seeks to involve the rule as a defense. See Miller v. Southern Asphalt Co., 314 Pa. 289; Casey v. Siciliano, 310 Pa. 238. However, the jury must have believed that the doctrine of sudden emergency did not apply in this case and that both the additional defendant and the original defendant were guilty of negligence and that their concurrent negligence was the cause of the injury to the plaintiff. The question of fact as to whether there was a sudden emergency was for the jury. Casey v. Siciliano, supra. There the court held "When the driver of an automobile claims he has been subjected to a sudden emergency in driving on the highways, to enable him to claim the benefit of this rule, it must appear that he was not driving in a reckless or careless manner, but with due regard to the condition of the highway and the traffic. One driving carelessly cannot say he was placed in sudden peril. If driving in a careful manner, the peril would not have arisen. The question, therefore, is usually one for the jury to determine, under proper instruction. The court made it very plain to the jury that if the driver was negligent in attempting to pass the car, they must find for the plaintiff."
In the case of Sudol et ux. v. Gorga, 346 Pa. 463, which is somewhat similar to the instant case, the son of the plaintiff was riding as a passenger in an automobile driven by defendant. At a certain point on the highway, the defendant saw a truck approaching, over the center line, at a distance of about 675 feet. He continued at his rate of speed, about 45 miles per hour, and when about five or ten feet from the truck swerved to avoid hitting the truck and in doing so overturned and caused the death of the plaintiff's son. A non-suit was entered and the case was appealed. Mr. Chief Justice MAXEY, in his decision, stated: "When he saw the truck coming down the hill towards him, a few hundred of yards away, and swerving to his side of the road, it was his duty in the interest of the safety of his passengers to slacken his speed substantially or possibly to stop. When he saw that the driver of the oncoming truck was driving carelessly, he could not with prudence assume that this carelessness was but a momentary aberration and that this driver would make a timely return to proper driving. . . . A driver facing a dangerous situation as did this defendant cannot escape the just imputation of negligence if he fails, as this defendant did, until the last of many seconds available to him, to take prudent action to avoid it. . . . That the driver of the truck was also negligent does not, of course, excuse this defendant's negligence." This, in our opinion, is a rule of reason applied to the doctrine of sudden emergency.
There are many cases holding that it is the rule in Pennsylvania that the driver of a vehicle at all times must have his car under control, and having one's car under control is that control which would permit the vehicle to be stopped before doing injury to any person in any situation that may reasonably arise. See Miller v. Carey, 117 Pa. Super. 218; Jacobson v. Palma, 115 Pa. Super. 401; Turner v. P.R.T., 111 Pa. Super. 439; Sweet v. Rounds, 349 Pa. 152; Moore v. Meyer Power Co., 347 Pa. 152; Christ v. Hill Metal Roofing Co., 314 Pa. 375.
We are satisfied that there was sufficient evidence in this case to sustain the verdict against both the original and additional defendants, and the amount of the verdict, $7,000.00, was not unreasonable. The amount which Dr. Arble was required to spend for doctor, hospital and nurses' bills amounted to $834.60. He testified that he was a physician, in active practice, and that he earned about $500.00 per month. He was entirely incapacitated and earned no money for a period of three months and that thereafter, during the remainder of the year his earning power was impaired and he was not able to do as much work as he did before and did not earn as much money as he did before. He had multiple cuts, abrasions and bruises of the face and had a chip broken off his cheek bone, and he suffered severe pain for a long time after this accident. He also suffered a fracture of the right patella or kneecap, which was comminuted, and he was hospitalized for some considerable time. It is not necessary to enter into further detail as to the character of the injuries or as to the amount of the damages. No objection has been raised as to the amount of the verdict on the part of the defendant.
For the reasons herein given the court, on April 21, 1947, denied the original defendant's motions for new trial and for judgment n. o. v.
Defendant appealed.
Philip N. Shettig, with him Thomas A. Swope, for appellants.
C. Randolph Myers, with him Alton A. McDonald, for appellee.
This is an action of trespass for damages for personal injuries alleged to have been caused by negligence of defendants. The jury returned a verdict against both defendants for $7,000. We can find no merit in this appeal of the original defendant. The additional defendant did not appeal. It was necessary to submit the case to the jury. Even defendant's own testimony suggests his negligence. The judgment is affirmed on the opinion of the learned President Judge of the court below.