Ross v. Reigelman

Opinion by Baldrige, J., The collision, out of which this action of trespass arose, occurred shortly before one o’clock p. m. on October 6, 1938, in the borough of Greenville. The minor plaintiff was operating a motorcycle in a southerly direction on South Mercer Street, which is approximately 25 feet wide. The defendant, who had been driving an automobile in the opposite or northerly direction on that street, brought his car to a stop on the east side thereof, about a car’s length south of the curbline on Washington Street, which intersects Mercer Street on the west side only, the east side being a dead end. The minor plaintiff testified at the trial that he had been traveling before the accident at the rate of 15 or 20 miles an hour and was within about 75 feet of Washington Street when he first saw defendant’s ear standing on the east side of Mercer Street; that defendant started to make a lefthand turn in front of him to cross South Mercer Street when he was about 15 feet away. The defendant intended to enter Washington Street which is 22 feet 4 inches wide. To reach the place the collision occurred he had to go north 11 feet thence west across South Mercer Street 23 feet or a total distance of 34 feet. The minor plaintiff, when he saw defendant turn, put on his brakes and reduced his speed immediately before the impact to 4 or 5 miles per hour, but according to his testimony he was unable to prevent his motorcycle hitting the front fender of the automobile. Defendant testified that when he began to move the *295 motorcycle was 150 feet distant and that lie bad ample time to cross tbe street. It is unnecessary to enter into a discussion of tbe conflicting stories relative to tbe accident. We are accepting, as we must, tbe minor plaintiff’s testimony in the most favorable light. Tbe trial resulted in verdicts in favor of tbe minor and bis parents. This appeal followed. The appellant’s single assignment of error is to the refusal of tbe lower court to grant bis motion for judgment n. o. v. He contends that Seymour Ross’ testimony shows that it was physically impossible for tbe defendant, moving at about 7 to 8 miles an hour, to travel at least 33 feet to tbe place of tbe accident, while tbe minor plaintiff riding at twice bis speed advanced only 15 feet. As tbe learned court below points out tbe fallacy of that reasoning is that tbe speed of tbe automobile was not based upon tbe testimony offered by plaintiffs, but solely upon that of tbe defendant. Tbe jury was not bound to accept as true defendant’s estimate of bis speed, of which be did not seem very certain, even though bis testimony was uncontradicted; bis credibility was for tbe jury: Ferguson v. Charts, 314 Pa. 164, 170 A. 131. Furthermore, incontrovertible physical facts cannot be established by oral evidence as to tbe speed or position of moving objects: Hegarty et ux. v. Berger, 304 Pa. 221, 155 A. 484; Mull v. Bothwell, 338 Pa. 233, 12 A. 2d 561; Winters et al. v. York Motor Express Co., Inc. et al., 116 Pa. Superior Ct. 421, 176 A. 812. Tbe appellant argues also that tbe evidence disclosed that tbe plaintiff was guilty of contributory negligence in that be was passing a scboolbouse that was located on tbe northwest corner of Washington and South Mercer Streets, at a speed in excess of 15 miles per hour at the noon recess in violation of Article X, Section 1002 of tbe Vehicle Code of May 1, 1929, P. L. 905, *296 as finally amended by the Act of June 5, 1937, P. L. 1718, §2, 75 PS §501 (b) (2). It is clear that the purpose of this statute was to protect school children, who are not involved herein, during recess periods or at opening or closing hours of school: Glowaski et ux. v. Rhoads, 312 Pa. 508, 166 A. 850. The plaintiff, undoubtedly, was somewhat contradictory in his testimony as to the speed he had been traveling before the collision and the jury could have concluded that he was violating the law in that respect. Assuming that he was, that did not convict him of negligence unless it can be shown that the speed he was then traveling was the proximate cause of the accident. In Collichio et ux. v. Williams, 311 Pa. 553, 166 A. 857, the defendant in an action of trespass claimed the plaintiff’s driver was guilty of contributory negligence in attempting to make a lefthand turn at a “T” intersection, which was governed by a traffic light, at a speed greater than 10 miles an hour in violation of Article X, Section 1002 of the Act of 1929, supra. The court there held in affirming the judgment that “a speed in excess of that permitted by statute will not convict the driver of negligence, unless it is shown that the speed was the proximate cause of the accident, which does not appear here.” See, also, Miller et al. v. Gutherie, 325 Pa. 495, 191 A. 61; Fuller v. Palazzolo et al., 329 Pa. 93, 197 A. 225; Restatement— Torts (Negligence), Volume II, §469. We said in Purol, Inc. v. Great Eastern System, Inc., 130 Pa. Superior Ct. 341, 197 A. 543: “The general rule is that the violation of a statute will not convict a plaintiff of contributory negligence unless it was the effective cause of the accident or, at least, contributed to its happening.” See, also, Metz v. Pittsburgh Railways Company, 135 Pa. Superior Ct. 534, 7 A. 2d 505. Our attention has been directed by the appellant to *297 Jinks et al. v. Currie, 324 Pa. 532, 188 A. 356. The Supreme Court held there that the provisions of Article X, Section 1008, of the Act of 1929, supra, as amended June 22, 1931, P. L. 751, §1008 (c), 75 PS §543 (c), prohibiting a driver from attempting to pass another at an intersection are mandatory, and that a violation thereof was negligence per se. The failure to comply with that provision undoubtedly created a definite hazard and caused the collision. We find no expression in that case indicating an intention to overrule or disturb the decisions to which we have referred and the many others of the same import which could be cited. Our conclusion is borne out as the present Chief Justice, the writer of the opinion, said (p. 538) : “This principle of negligence per se was in mind when we decided Lane v. Muller, Inc., 285 Pa. 161, 131 A. 718; Zandras v. Moffett, 286 Pa. 477, 133 A. 817; and Hayes v. Schomaker, 302 Pa. 72, 152 A. 827; ......” A reference to those cases will show that in each instance the court expressly said that a violation of the statute will not create a liability where it is not the proximate or efficient cause of the injury that follows. If there is no causal connection whatever betvyeen one’s failure to obey a law and an accident it is quite difficult to understand why his right to recover in a trespass action should be defeated on that ground. The appellant argues also that it was the duty of the minor plaintiff approaching an intersection to yield the right of way to him as he was first in the intersection, turning to the left to cross the street and that the operator of the motorcycle was negligent in not stopping his machine before the collision. That contention involves a factual situation which was submitted to the jury under proper instructions as to the law and it found against the defendant. In Mehler v. Doyle et al., 271 Pa. 492, 115 A. 797, relied upon by the appellant, the defendant truck driver drove *298 diagonally for a considerable distance in front of the plaintiff. There was no abrupt or sudden turning as was alleged here by the plaintiffs. A careful review of all the evidence in this case and the able argument of the appellant convinces us that the evidence does not clearly show that the minor plaintiff was so unmistakably guilty of contributory negligence that we would be justified in disturbing the verdicts reached after a fair trial free of legal errors. See Altomari v. Kruger et al., 325 Pa. 235, 188 A. 828 and Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194. Judgments are severally affirmed.