Wagenbauer v. Schwinn

Opinion by Mr. Justice Schaffer, Defendant driving his own automobile in which plaintiff and others were guests on a ten-foot-wide bituminous road in the State of New Jersey with gravel and sand “shoulders” approached a turn in the road, where it was intersected by another sandy country road, without moderating his speed, which was at least thirty-five miles an hour, and in endeavoring to make the turn the car upset and plaintiff sustained the injuries to recover damages for which this action is brought. The trial resulted in a verdict for defendant and from the judgment thereon plaintiff appeals. The contention of appellant is that the overturning of the car was due to the unlawful speed at which it was driven and he relies as the basis for his charge of unlawful speed upon the fact that under the Pennsylvania. Motor Vehicle Act of June 30,1919, P. L. 678, as amended by the Act of May 16, 1921, P. L. 582, section 8, a speed in excess of thirty miles an hour is prohibited and upon the presumption (Roberts v. Freihofer Baking Co., 283 Pa. 573) that the New Jersey law is the same as our own. He did not declare on the New Jersey statute nor did he offer it in evidence. It may be a very interesting question for investigation when its solution is necessary to the determination of a case whether the presumption as to similarity of the law applies to such an enactment *131 as the regulation of speed (see Wigmore on Evidence, 2d ed., vol. 5, sec. 2536) but we are not called upon to pursue the investigation in this case because the plaintiff is barred from recovery by his own concurring negligence. He was seated on the front seat of the car with the driver and testified that he made no objection to the speed, indeed that he was satisfied with the way defendant was driving, that just prior to the accident he had paid no attention to what was in front of him on the road, but had been leaning over the back of the seat talking to those who were seated in the rear. Under these circumstances, we fail to see how plaintiff can set up as negligent conduct that which he approved: Hardie v. Barrett, 257 Pa, 42. Guests in an automobile are not without certain duties as to the manner in which the car they are riding in is being driven (Ferrell v. Solski, 278 Pa. 565, 570); here plaintiff admits he either ignored or failed to observe his duty and thereby he concurred in any negligent act of his host. Furthermore, a reading of the record does not carry to our minds the certain conclusion that it was the speed at which the car was being driven which caused its upset, rather it would seem that the sand in the “shoulders” of the road may have been the important factor in the accident. The judgment is affirmed.