Miller v. Gault

Opinion by Mr. Justice Linn, These appeals are from judgment on verdicts for plaintiff in a suit against two defendants to recover for the loss of the life of Mrs. James W. Miller, who was struck by a one-ton Dodge delivery truck driven by the defendant, Gault, engaged on the business of the other defendant. The accident occurred after dark, November 10,1939, on a three-lane highway, with concrete paving 30 feet wide, in a neighborhood stipulated by the parties to be “strictly rural” and where there was “no marked and designated crossing at or in the vicinity. . .” The weather was windy with “a storm coming up.” The question is whether the plaintiff made out a case free from Mrs. Miller’s contributory negligence. We think her negligence clearly appears; nothing in the evidence offered by the defendants cures this defect, though we assume for present purposes that defendant, Gault, was negligent. Mrs. Miller was a passenger in an automobile driven by Kenneth Tarr, traveling northward on Route 8 from Pittsburgh toward Butler. He stopped the car about three feet off the paved portion of the highway and on the *476 easterly berm, to allow Mrs. Miller to alight and cross the road to a spring. The car was stopped about 123 feet north of a point opposite the spring. To go to the spring on the opposite side, it would have been necessary to travel a distance, fixed by Tarr, “between 140 and 150 feet,” by crossing the road diagonally or by going south along the east side of the road until she reached a point opposite the spring and then crossing the road. Mr. Tarr testified that he saw Mrs. Miller alight on the right side of his car and walk southward though he did not see what she did after passing the rear of his car. He dimmed his car lights and then observed, approaching from the north, the lights of defendant’s truck proceeding south “around the curve” at a distance fixed by Tarr as “from 1500 to 2000 feet” away. Tarr got out of his car, rolled a cigarette and then heard a crash. There was no traffic on the highway other than defendant’s truck, between the time Tarr stopped his car and the time when he heard the crash. Mrs. Miller’s body was thrown to the west side of the highway, after being struck by the right front fender of defendant’s truck. On the night of the accident, two Pennsylvania Motor Patrol officers questioned Gault about it. The plaintiff called these officers as his witnesses. Officer Barry testified that Gault informed him that Mrs. Miller was “in the center lane when I noticed her” and “appeared to be moving fast as though she was running . . . toward the west.” Officer Krzton testified that Gault said Mrs. Miller was “approximately 20 feet from the front of his vehicle and apparently in the center of the road . . . traveling from east to west running.” It appears, as plaintiff’s witnesses testified, that defendant’s truck with lights burning, was visible from a distance of 1500 to 2000 feet when Mrs. Miller started southward from the car for the spring; that she had to go at least 140 feet to arrive there; that upon defendant’s first glimpse of her, she was “approximately 20 feet” from his truck; that when she was struck, she was in the act of running westwardly across the road along which *477 Gault was proceeding. During the period she was moving across the highway it was her duty to look for and to see what was clearly visible; she must be taken as having seen the defendant’s approaching truck and having carelessly attempted to cross in front of it. 1 November 23, 1942: Counsel suggested at the argument that plaintiff was not bound by Gault’s declarations as testified to by the two officers. The plaintiff put them in evidence and they are in for all purposes, 2 precisely as they would have been if plaintiff had called Gault for cross-examination, obtained the same answers without thereafter contradicting them. 3 In the absence of evidence of what occurred, plaintiff might have rested on the presumption that Mrs. Miller exercised due care, but plaintiff did not do that; he produced the evidence outlined above displacing the effect of the presumption 4 and is bound by the evidence. The judgments are reversed and here entered for defendants. Footnotes [1] See Glancy v. Meadville Bread Co., 340 Pa. 432, 455, 17 A. 2d 395, 397; Gajewski v. Lightner, 341 Pa. 514, 516, 19 A. 2d 355, 356; Guy v. Lane, 345 Pa. 40, 43, 26 A. 2d 327. [2] Cf. Poluski v. Glen Alden Goal Co., 286 Pa. 473, 476, 133 A. 819, 820; Harrah v. Montour R. R. Co., 321 Pa. 526, 528, 184 A. 666, 667. [3] Cf. Readshaw v. Montgomery, 313 Pa. 206, 209, 169 A. 135, 137. [4] See Conley v. Mervis, 324 Pa. 577, 587, 188 A. 350, 355.