Gillespie v. Shafer
Gillespie v. Shafer
Opinion of the Court
Opinion by
Both parties to this appeal were driving motor vehicles on Broad street in West Bethlehem. The appellant was using the southerly side of that street, traveling eastwardly; the appellee was on the opposite side traveling westwardly. The appellant, when at the intersection of Seventh avenue and Broad street, made a quick turn to go north on the avenue, cutting across by the shortest angle of the turn at the intersection of the streets, crossing over two street car tracks and directly across the path of the plaintiff, of whose approach he had an unobstructed view for some distance. The appellant, against whom damages were awarded, urges that the appellee was guilty of contributory negligence in that he did not approach the corner with his car under control, and he could see the appellant’s car making the turning movement a sufficient distance away to have enabled him to have stopped his motorcycle. “It is the duty of one approaching the crossing of a street intersection to have his vehicle under control; and to observe what is or may be approaching on the other street. And where another vehicle is first at the crossing to give it an opportunity to clear the same; and to use due care to avoid a collision” : McClung v. Pennsylvania Taximeter Cab Co., 252 Pa. 478-480. The testimony shows that the motorcycle was traveling at a speed of fifteen miles an hour as it approached the crossing. There was a vacant lot on the driver’s right, which gave him a clear view of the intersecting street to the north for some distance; on his left he had the greater part of the width of Broad street, sixty feet, and from his position looking south on Seventh avenue, he had a view for some distance. As the situation thus presented itself to the court it could not say, as a matter of law, that the defendant’s car was not
There was offered in evidence an ordinance requiring all vehicles in turning corners to the left, before turning, should pass to the right of the intersection of the two streets. The admission of this ordinance is assigned as error. It is urged that it tended to confuse the jury, and its violation was not the proximate cause of the injury. To establish negligence, there must first be made to appear a duty unperformed; without the violation of a duty there can be no negligence. This duty may be imposed either through the relation of the parties or by statute. The legislature may impose a duty distinct from a common law duty and prescribe a standard of care for that duty. A municipality cannot, by ordinance, create a civil duty enforceable at common
The ordinary and lawful travel on thoroughfares is to the right and at intersecting streets in cities and boroughs it is to the right of the center of the intersection. The ordinance fixed the same standard of care as that at common law, and so considered, its admission as evi
Some of the assignments of error are not in the form prescribed by our rules and will not be considered.
The court did not err in refusing to affirm the points presented by the appellant and in its charge of the court here specified for error. The salient feature which justified the refusal of the points is their lack of specific averment of facts necessary for a proper affirmance. The gist of the charge of negligent conduct consisted in the fact that the appellee saw the appellant start his turning movement a sufficient distance away to have prevented injury. The court stated to the jury that if the appellee “could see the defendant here when he was moving away from his course a short distance to the north” that he would be chargeable with contributory negligence, or if he could see the signal of the defendant that he was about to cross the street. The court having defined the law of contributory negligence and applied it with the illustrating facts in its general charge, though not done as precisely as presented in the defendant’s points, cannot be convicted of error if it refuses to affirm points bearing on the same instruction.
No substantial harm was done by denying to the appellant the right to have the questions answered which are here assigned for error. Considering all of the testimony and the issue involved, the charge of the court was not prejudicial to the defendant. Harvey v. Philadelphia Rapid Transit Co., 255 Pa. 220, cited by the appellant, does not control this case. In that case, the driver of the automobile could see the street car approaching ninety feet away on the cross-over to run through the subway. In the case before us, the cross-over was a sharp, oblique turn, and, as found by the jury, the appellee had no notice that it was intended to be so made.
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- Negligence — Collision between motor car and motorcycle — Improper turning of corner- — Ordinance—Contributory negligence— Case for jury. It is the duty of one approaching the crossing of a street intersection to have his vehicle under control; and to observe what is, or may be approaching on the other street. And where another vehicle is first at the crossing to give it an opportunity to clear the same, and to use due care to avoid a collision. In an action to recover damages for personal injuries sustained in a collision between plaintiff’s motorcycle and defendant’s automobile at the intersection of two streets, the question of the defendant’s negligence and plaintiff’s contributory negligence is for the jury where the evidence tends to show that defendant was using the southerly side of a street; that the plaintiff was on the opposite side traveling westwardly at the rate of about fifteen miles per hour; that defendant at a street intersection made a quick turn to go north on a street, cutting across by the shortest angle of the turn at the intersection of the streets, crossing over two street car tracks, and directly across the path of the plaintiff, of whose approach he had an obstructed view for some distance. In such a case even if plaintiff had seen the defendant's automobile approach he was under no duty to anticipate that the defendant would carelessly, and without warning or notice cross his path directly in front of him. If the plaintiff was observing what was approaching on the intersecting street, it was impossible for him, when so engaged, to notice a vehicle suddenly swerve from its path of safety and cross diagonally in front of his machine. A person lawfully in the public highway may rely upon the exercise of reasonable care by the drivers of vehicles to avoid injury and the failure to anticipate the omission of such care, does not render him negligent. Where a person in driving an automobile cuts across by the shortest angle of the turn at the intersection of two streets and runs down and injures a motorcyclist, and an action is brought against such person for the injuries, the court at the trial of such action, commits no error in admitting in evidence a city ordinance requiring that all vehicles in turning corners to the left, before turning, should pass to the right of the intersection of two streets. Such an ordinánce is not admissible as substantive and sufficient proof of the negligence of the defendant, but is admissible for the purpose of aiding the jury in their deliberations, as a municipal expression of opinion upon the subject under investigation to be considered with all other evidence in the case. Charge — Refusal to answer points. Where a trial judge has defined the law of contributory negligence and applied it with the illustrating facts in the general charge although not done as precisely as presented in certain points of the defendant, he cannot be convicted of error if he refuses to affirm points bearing on the same instruction.