Richardson v. Patterson
Richardson v. Patterson
Opinion of the Court
Opinion by
This is an appeal from a refusal of the court below to take off a compulsory nonsuit entered at trial as to both defendants, a husband and wife. The plaintiff sued to recover damages for injury to himself and to his automobile as a result of a collision with an automobile owned by the husband-defendant but driven by the wife who was accompanied by their two minor children. The husband was not present.
The plaintiff’s theory in joining the husband as a party defendant was that the wife was his agent or servant and was driving the automobile on his business at the time of the accident. The defendants, by their answer, denied the allegations of the wife’s agency and the husband’s control; and, the plaintiff offered no proof of either allegation. The only evidence concerning the husband was that he was the sole owner of the automobile involved in the collision with the plaintiff’s
The evidence offered by the plaintiff in an effort to hold the wife-defendant liable disclosed the following set of circumstances. About 2:45 p.m. on a day late in November, the plaintiff was driving his automobile westwardly on the Pennsylvania Turnpike in the vicinity of Somerset. As stated in the appellant’s history of the case, and not contradicted, the Turnpike consists of two concrete highway lanes, one for eastbound and the other for westbound traffic, each lane being twenty-four feet wide and separated by a ten foot medial strip. The day was cold and gusty with snow flurries. There were some ice patches on the highway. The plaintiff said the visibility “appeared to be fair”; his witnesses described the weather as murky. A mile or two before reaching the Somerset interchange, the plaintiff had slowed down from his normal speed of thirty-five miles an hour because of the appearance of “patches of ice”. Shortly after that, the skidding of a car up ahead of him, which had just passed him, caused the plaintiff to slow down to almost a stop about a mile west of the Somerset interchange and to pull over to the right and on to. the berm with his righthand wheels. While the plaintiff was in that position, a car driven by the defendant, Mrs. Patterson, proceeding in the opposite direction in the east
Had the plaintiff been content with proving that the collision occurred in the westbound lane where Mrs. Patterson’s car, proceeding eastwardly, should not have been, the burden would have been upon the defendant to offer exculpatory proof if she wished to be found not guilty of causative negligence. The presence of an automobile on the wrong side of a highway is prima facie evidence of the driver’s negligence: Miles v. Myers, 353 Pa. 316, 318, 45 A. 2d 50. But, here, the explanation of how the Patterson car came to be in the wrong traffic lane was supplied by the plaintiff himself when he offered evidence that it was the result of skidding. It then became the duty of the plaintiff to offer testimony from which the jury could infer that the skid resulted from negligence on the part of the driver. In Johnson v. American Reduction Co., 305 Pa. 537, 541, 158 A. 153, Mr. Justice Drew, speaking for this court in affirming a judgment n.o.v. for lack of negligence, said “The skidding; of. a vehicle does
All that the evidence in this case showed as to the circumstances attending the collision was that the road was level and straight for a considerable distance in either direction; that there were patches of ice on the roadway and some snow; that occasional gusts of wind whipped up the snow; that the visibility was fair; that Mrs. Patterson had been proceeding at a speed of twenty miles an hour for a distance of ten miles; and that her car skidded into the plaintiff’s. The learned judge of the court below correctly appraised the evidentiary situation as follows: “[A] minute examination of all the testimony, in a light most favorable to the plaintiff, compels the conclusion that plaintiff has proved nothing more than an automobile collision as the result of skidding of defendant’s automobile; there is not a scintilla of evidence of negligence in the operation of her vehicle on the part of defendant Gladys Patterson; no circumstances were shown upon which we could say to the jury that they could logically find or reasonably infer negligence on the part of this defendant; had we submitted the case to the jury we would in essence have been permitting the jury to guess or speculate as to any negligence on the part of this defendant and that we are neither willing nor permitted to do.”
There was nothing in the managing of the defendant’s car, prior to the skidding and the consequent collision, to indicate a lack of ordinary care in its operation: see Simpson v. Jones, 284 Pa. 596, 598, 131 A. 541. There was no evidence of excessive speed or that the. skidding was the result of carelessness on the part
As skidding, in and of itself, is not evidence of negligence, obviously something additional must be shown before it can justifiably be found to have resulted from the operator’s carelessness. Compliance with that requirement in the cases cited and relied upon by the plaintiff readily distinguishes them from the present. In Davin v. Levin, 357 Pa. 554, 556, 55 A. 2d 364, the defendant was driving his truck on trolley tracks on a wet and slippery day at a speed of twenty-five miles per hour. The negligence which caused the skidding in that case derived from the fact, as recognized in the opinion for the learned court below whereon we affirmed, that “. . . it requires no argument to convince anybody who drives a car that one who drives on wet rails can anticipate trouble whether he elects to stay
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion by
I agree that the non-suit was correctly entered as to the husband defendant but I do not agree that a non-suit was properly entered with respect to the wife defendant.
To my mind where a motor vehicle crosses a dual highway separated by a center strip and crashes into another motor vehicle travelling on its correct side, the question of negligence is for the jury because whether the accident was unavoidable in this case due to an
Where in one part of a plaintiff’s testimony be is entitled to have tbe case submitted to tbe jury, and in another part be is not, it is for tbe jury to reconcile tbe conflicting statements and determine which shall prevail: Greene v. Philadelphia, 279 Pa. 389, 392, 124 A. 134 (1924); Bisaillon v. P. R. T., 84 Pa. Superior Ct. 153, 156 (1924). Tbe same rule applies where tbe testimony of a witness conflicts with that of tbe plaintiff: O’Farrell v. Mawson et al., 320 Pa. 316, 182 A. 538 (1936); Cardone v. Sheldon Hotel Corp., 160 Pa. Superior Ct. 193, 195, 50 A. 2d 700 (1941).
Sumey also testified tbe drivers of both cars were rendered unconscious by tbe force of tbe impact. He further testified that they bad been travelling behind
The learned court below reviewed many of the skid cases and drew from them the proper governing rule of law which is that: Proof of skidding of a motor vehicle does not of itself constitute negligence though circumstances may be such as to impose on the owner or driver of the skidding vehicle the burden of proving there was no negligence in the operation thereof. I agree with this statement of the rule which was announced in Griffith v. V. A. Simrell & Son Co., 304 Pa. 165, 155 A. 299 (1931), and constantly reiterated in the numerous skidding cases, which I refer to in a footnote appended at the end of this opinion. Both in that case and in Cook v. Miller Transport Co., Inc., 319 Pa. 85, 179 A. 429 (1935), we also said, “The wet and slippery condition of the street must be taken into consideration by the driver and he is bound to reduce his speed to the point where he can control the movement of the
Here we have a case with intervals of falling snow, poor visibility and icy patches on the road, in which the defendant’s car travelled in its skid from the right hand lane of east bound portion of the highway, a distance of at least 40 feet clear across the center strip and collided with a car almost at rest with such violence as to render both drivers unconscious. From these facts the jury, irrespective of the speed estimates of the witnesses,
With but few exceptions, cases where the defendant’s vehicle skidded into a car proceeding in the opposite direction on the other side of the street, we have held to be for the jury. Certainly we have been able to find no case in which a nonsuit was ever entered where a vehicle skidded clear across a dual highway over a division strip into a car on the extreme opposite lane of travel.
Mere estimates of speeds of moving objects we have frequently beld must necessarily be for the jury: Miller v. Measmer, 353 Pa. 18, 20, 44 A. 2d 284 (1945) and cases gathered by Mr. Justice Allen Stearne in Cunningham v. Pa. R. R. Co., 352 Pa. 571, 575, 43 A. 2d 825 (1945).
The following cases In which defendant’s car skidded across the highway and struck plaintiff’s car on the opposite side were all held to be for the jury: Szvitih v. Doernte, 360 Pa. 415, 61 A. 2d 823 (1948) ; Davin v. Levin, 357 Pa. 554, 55 A. 2d 364 (1947) ; Miles v. Myers, 353 Pa. 316, 45 A. 2d 50 (1946) ; Mulheirn v. Brown, 322 Pa. 171, 185 A. 304 (1936) ; Griffith v. V. A. Simrell and Son Co., 304 Pa. 165, 155 A. 299 (1931) ; Laessig v. Cerro, 149 Pa. Superior Ct. 155, 27 A. 2d 731 (1942) ; Matzasoszki v. Jacobson, 122 Pa. Superior Ct. 180, 186 A. 227 (1936) ; Corse v. Ferguson, 118 Pa. Superior Ct. 606, 180 A. 65 (1935) ; Bernstein v. Smith, 86 Pa. Superior Ct. 366 (1926).
Other cases in which the skidding was held to be for the jury are: Schulz v. Reading Trans. Co., 354 Pa. 373, 47 A. 2d 213 (1946), where bus on which plaintiff’s decedent was a passenger skidded 150 feet into and broke a telephone pole ten inches in diameter while travelling 15 to 20 miles an hour on slippery highway that curved down grade; Miller v. Measmer, 353 Pa. 18, 44 A. 2d 284 (1945), where defendant skidded, turning into an intersection with street icy and slippery at 30 miles per hour according to plaintiff’s evidence; Eisenhower v. Hall’s Motor Transit Co., 351 Pa. 200, 40 A. 2d 458 (1945), where a tractor trailer skidded a
The following cases were held not to be for the jury: Master, Admrx., v. Goldstein’s Fruit & Produce, Inc., 344 Pa. 1, 23 A. 2d 443 (1942), defendant’s truck skidded into path of car driven by plaintiff’s decedent. No ice on highway except where accident occurred. Speed of defendant’s truck 15 to 20 miles an hour (But in Kotlikoff v. Master, Admrx., 345 Pa. 258, 27 A. 2d 35 (1942), which arose out of the same accident, and with the additional evidence that the truck was going 45 to 50 miles an hour and that the ice extended from 50 feet west of the crest of the hill to a point somewhere beyond the bottom of the hill, this court held the question of negligence to be for the jury) ; Lithgow, Exrx., v. Lithgow, 334 Pa. 262, 5 A. 2d 573 (1939), defendant skidded on loose gravel going around curve, no other evidence; Dahlman v. Petrovich, 307 Pa. 298, 161 A. 550 (1932), plaintiff attempted to go up a snowy hill and could not make it. Defendant, after passing plaintiff at
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