Grimes v. Yellow Cab Co.

Opinion by Mr. Justice Patterson, This was an action in trespass, arising out of a collision between a taxicab owned by the Yellow Cab Company and a truck of the Fire Insurance Patrol of the City of Philadelphia. Suit was brought jointly by Thomas Magan, the driver of the truck, and three other employees *300 of the Fire Insurance Patrol who were lading on the back of the truck at the time of the accident, James Grimes, Harry Krueger and George Rothman, to recover for personal injuries, and by the Fire Insurance Patrol of the City of Philadelphia, to recover for property damage to the truck. Magan and the Fire Insurance Patrol were brought upon the record as additional defendants by the Yellow Cab Company, and it filed a counterclaim for damage to its taxicab. Compulsory nonsuits were entered as to the Fire Insurance Patrol and Magan, at the conclusion of the evidence for plaintiffs on liability, and when plaintiffs had completed their case, the trial judge directed verdicts in favor of the Yellow Cab Company and the Fire Insurance Patrol, additional defendant, as to Grimes, Krueger and Rothman, who then suffered voluntarynonsuits as to the additional defendant Magan. No evidence having been presented by the Yellow Cab Company, a verdict Avas also directed against it on the counterclaim. Magan and the Fire Insurance Patrol filed motions to remove the nonsuits as to them, and Grimes, Krueger and Rothman filed motions for a neAV trial. All of these motions were dismissed by the court en banc and judgment was entered on the directed verdict in favor of the Yellow Cab Company as to Grimes, Krueger and Rothman. Magan and the Fire Insurance Patrol now appeal from the refusal to take off the non-suits, and Grimes and Rothman have appealed from the entry of judgment in favor of the Yellow Cab Company. Krueger has not appealed. The accident occurred at about 9:00 p.m. on March 13, 1938, at the intersection of Twenty-third Street and the Parkway, in the City of Philadelphia, where, as is well known, there are no buildings within hundreds of feet to interfere with the view of approaching drivers. The fire patrol truck had entered the middle lane of the Parkway, Avhich runs northwest and southeast and is eighty feet in width from curb to curb, at Twenty-first Street, and was proceeding northwest, on its own right *301 side of the center lane of the Parkway, about seven feet from the right-hand curb, at a speed of twenty to thirty-five miles per hour, going to a fire. Two large red automatic blinker lights located on the top of the truck, at the front, were in continuous operation, as were also its gong and siren, which were clearly audible for a distance of several city blocks. Magan, the driver, testified that the traffic signal light at the intersection of the Parkway and Twenty-third Street was green in his favor and that there was nothing in the intersection when the truck reached a point about seventy-five feet from the intersection ; that he proceeded forward, “looking straight ahead”; that he first saw the taxicab as the rear wheels of the truck cleared the westerly rail of a set of trolley tracks located in the center of Twenty-third Street, which is forty feet in width and rung north and south, and that it was then fifteen to twenty-five feet away. He also testified that after the accident he observed that the windshield and windows of the taxicab were foggy and covered with mist. One Myers, who was riding in the cab of the truck, beside the driver, testified that all he saw of the taxicab was “the flash of yellow” at the instant of the collision. Grimes, Krueger and Rothman, who were riding in the back of the truck, did not see the taxicab at all before the collision, because they were facing backward and had their coat collars up to protect their faces from a cold drizzle or sleet that was falling. The impact did not occur until the truck had traveled three-quarters of the way across Twenty-third Street, when it was struck by the taxicab, near the middle of its left side, with such force that Grimes, Krueger and Rothman were thrown completely out of the truck, Grimes being thrown a distance of thirty feet, and the truck itself, weighing a ton and a half, was thrown against a light standard at the northwest corner, breaking it off, and was turned around, so that when it came to rest it was facing northeast, with its rear wheels on the curb at the northwest corner. The taxicab proceeded for a distance of eighty *302 feet before it was brought to a stop, on the grass plot to the south of the center drive of the Parkway, twenty-five feet from the southwest corner. The court below concluded that this evidence was insufficient to sustain a recovery on the part of any of the appellants, stating as follows: “On the evidence in this case one might conjecture negligence on the part of the defendant, but it cannot be said that a finding of negligence could be properly based on the proven facts. The taxicab according to the evidence having been first seen when very close to the Insurance Patrol with no evidence of its speed or manner of operation, presents nothing more than a mere happening of a collision. Such a case cannot be given to a jury.” We think this was error. While it is true that the mere happening of a collision between two motor vehicles, in the absence of evidence as to the manner of its occurrence, affords no proof that one party and not the other was at fault (Brooks v. Morgan, 331 Pa. 235, 239; Hutchinson v. Follmer Trucking Co., 333 Pa. 424, 426; Ranck v. Sauder, 327 Pa. 177, 180), it is also true that the fault of the operator of the alleged offending vehicle need not be established by the direct testimony of eyewitnesses, where such proof is unavailable, as it oftentimes is, but may be shown by proof of attending circumstances from which it can legitimately be inferred that the accident would not have happened if he had used due care (Pfendler v. Speer, 323 Pa. 443, 445; Ranck v. Sauder, supra, 180; Brooks v. Morgan, supra, 239). Such circumstances were here shown. It has been held, repeatedly, that care at street crossings is the highest duty of a motorist. “We have held over and over again that at street crossings drivers must be exceedingly vigilant to have their cars under such control that they may stop at the slightest sign of danger. If they do not, and an accident results, they are liable in damages for its consequences”: Gilles v. Leas, 282 Pa. 318, 320. As was said in Byrne v. Schultz, 306 Pa. 427, *303 433: “The law only makes obligatory the rule of common sense regarding the duty of a driver at the intersection of streets, where traffic is very dangerous because conflicting. He must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look, and see what is visible, before attempting to cross the intersecting street. This duty has not been relaxed by the introduction of traffic officers and signals, both of which are intended to facilitate traffic and render crossings less dangerous”. See also: Goodall v. Hess, 315 Pa. 289, 292; Fearn v. Gity of Philadelphia, 320 Pa. 156, 158; Logan v. Bethlehem City, 324 Pa. 7, 11. And this is particularly so where there are unusual weather conditions such as were here shown to have existed at the time of the accident (Hutchinson v. Follmer Trucking Co., supra, 427), and where the driver is entering a main thoroughfare from a side street, as was the driver of appellee’s taxicab (McNulty v. Horne Co., 298 Pa. 244, 247). Although no witness described, from actual observation, the course, speed and method of operation of appellee’s taxicab, appellants’ evidence does establish that the taxicab entered the intersection when the fire patrol truck was less than seventy-five feet from the intersection, with its driver completely oblivious to what his eyes and ears must have told him, and that it proceeded a distance of nearly seventy feet across the center drive of the Parkway into the side of the truck, in spite of the fact that it must have been apparent at all times, from the speed of the truck and the warnings of its blinker lights, which were plainly visible, and its bell and siren, which were clearly audible, that it intended to make the crossing. This evidence, coupled with the evidence as to the distance the taxicab continued after striking the fire patrol truck and as to the violence of the impact, would clearly justify the conclusion that appellee’s driver was traveling at an excessive rate of speed, or was not exercising the high degree of watchfulness required of motorists at street crossings, and was, in our *304 opinion, sufficient to carry the question of the taxicab driver’s negligence to the jury. See Schoepp v. Gerety, 263 Pa. 538; Robb v. Quaker City Cab Co., 283 Pa. 454; Johnston v. Cheyney, 297 Pa. 199; Smith v. Wistar, 327 Pa. 419. As to appellants Magan and the Fire Insurance Patrol, the court below thought there could be no recovery for the additional reason that Magan admitted he “did not look to the side”, as he approached the intersection, but was “looking straight ahead.” We are unable to conclude that this is necessarily so. “The test for contributory negligence is whether the act [alleged as] constituting the negligence contributed in any degree to the production of the injury: Creed v. P. R. R., 86 Pa. 139, 145; Gould v. McKenna, 86 Pa. 297, 303. If it did, there can be no recovery”: Robinson v. American Ice Co., 292 Pa. 366, 369. See also: Goldschmidt v. Schumann, 304 Pa. 172, 176; McFadden v. Pennzoil Co., 341 Pa. 433, 436. Here, Magan’s failure to look to the side as he approached the crossing, which is “the act alleged as constituting the negligence”, may or may not have been a contributing cause of the accident, depending upon the facts as to the speed of the taxicab, the distance it was away, the side of the street on which it was approaching, and other circumstances, as to which no proof has as yet been adduced. It may be that the taxicab was not proceeding along Twenty-third Street at all, but was traveling southeast on the southerly lane of the Parkway, as the appellee itself suggests, so that it would not have been visible to Magan if he had looked, and suddenly deviated its course into the center lane or, irrespective of the direction in which it was proceeding, it may be that if Magan had looked, and seen the taxicab, he might reasonably have expected that he would have ample time to cross in front of it, or that it would stop, and it may have suddenly increased its speed or swerved to the opposite side of the street from that on which it was approaching, at a time when it was too late for him to act to avert *305 the collision. It is thus apparent that, as the record now stands, it cannot be affirmed that Magan’s failure to look was a contributing cause, or a cause at all, and that the entry of the nonsuits as to him and the Fire Insurance Patrol on the ground that it was, was improper. As in the case of the alleged negligence of the defendant, contributory negligence on the part of a plaintiff must at least be shown by circumstances from which such negligence may be inferred, and the burden of proof, in this instance, rests with the defendant. A plaintiff, in order to recover, is not required to disprove contributory negligence, but only to make out a case which does not conclusively disclose its existence, and we think this was here done. See Ely v. Railway, 158 Pa. 233, 238; Coolbroth v. Penna. R. R. Co., 209 Pa. 433, 439; Straus v. Rahn, 319 Pa. 93, 95. The assignments of error are sustained, the judgments are reversed, and a venire facias de novo is awarded.