Ley v. Henry

Opinion by Orlad y, J., The plaintiff was crossing over the Sixth Street bridge — 598 — which connects the cities of Allegheny and Pittsburg, when she was run over by the defendant’s automobile. This bridge is a public thoroughfare sixty-eight feet wide, and 1,000 feet long, from shore to shore. The cart-way, or roadbed is forty feet wide, paved with wooden blocks and has thereon two lines of street car tracks; on each side of the bridge there is a walk for pedestrians about ten feet in width. The roadbed and sidewalks are not separated by guards or barriers, though each is constructed and ordinarily used for their respective and particular purposes. When this plaintiff was about 250 feet from the Allegheny side of the bridge she was signaled by a friend and requested to come over to the sidewalk on the opposite side of the bridge. She describes the accident as follows: “I was particularly anxious to see her. I looked up and down the bridge four or-five times and attempted to cross over, I got very near the first car track and saw a car and a truck, then I looked up and down and saw an automobile, and I ran back to get out of its way, but it was coming at such terrific speed that I couldn’t make it. When I saw it first it was about 100 or 150 feet away, behind a two horse truck wagon. I got out of the way of the truck wagon but couldn’t get to the curb before the auto hit me.” The plaintiff admitted that many teams, street cars and automobiles cross the bridge, and that it is very much used at the hour of the day she was injured; however she insisted that it was not unusual for persons who crossed the bridge on foot to pass over the roadway proper from one side to the other; that there were wide open spaces between the ironwork of the bridge and dozens of persons cross it daily in the way she did. She was corroborated in each material statement by several witnesses who saw her when she was about seventy-five feet distant from the street car and at the first rail where she halted and turned to go back when the automobile passed the car on the right hand side at the rate of about thirty miles per hour, and — 599 — struck the plaintiff, knocking her up into the air, highér than the top of the auto and then went on without slackening speed until it was stopped at the north end of the bridge. The superintendent of the bridge testified that while it is intended that foot passengers shall cross only on the sidewalks and not on the roadbed, that it is not unusual to see people going from one side of the bridge to the other so that, from the undisputed testimony it is manifest that it was neither unusual or prohibitive for foot passengers, men, women and children to cross the roadway. The bridge authorities knew of the frequent use of the roadway by foot passengers in going from one side to the other, and did not guard against such use by any barrier or guard. The plaintiff did no other or different thing from what she knew was done by others and was permitted by the bridge patrol. The traffic on the bridge was no more congested than on the streets with which it connected, though it would naturally be more rapid in its movement. An attempt was made to regulate speed by caution signs of “go slow — danger.” The case of Corbitt v. Philadelphia Rapid Transit Co., 227 Pa. 297, on which the defendant relies, is materially different in its facts. The plaintiff there was halted by the ending of the pavement and a hand rail extending across it. Instead of crossing the street where he knew there was a good sidewalk, he followed a narrow, rough, irregular dirt path with sloping sides across the bridge, which gradually became narrower between the rail and track. The night was dark and he was unable to see the car tracks and barely able to see the bridge rail. • In the case before us the accident occurred in clear daylight where every object on the bridge was distinctly in view. It was the bounden duty of the plaintiff to use due care according to the circumstances, and to avoid a known danger by the exercise of special precaution as the danger became more apparent, but the testimony in this case did not warrant the court in holding as matter, of- law that — 600 — she was guilty of contributory negligence. The conduct • of the driver of the automobile was reckless in the extreme, and the question of the plaintiff’s contributory negligence was fully and fairly submitted to the jury. A more serious question is raised by the third assignment of error (defendant’s second point), which was refused, and is as follows: “The evidence shows that the man Gray, the driver of the car, was not on the business of the defendant; that none of the defendant’s family were in the car; that the errand upon which the car was taken was not the errand of the defendant; that Gray frequently took the car on his own business, which caused his discharge when discovered by the defendant. Therefore, under all the circumstances, the burden is shifted from the defendant and rests upon the plaintiff to show that the driver of the car was acting for the defendant and was in the scope of his employment, and there being no evidence of such a fact the verdict must be for the defendant.” The point presented does not state the undisputed facts. The evidence does not show that anyone was with the chauffeur in the car when the accident happened. It does show by the defendant’s testimony, that his duties were general — “duties of any sort — to take care of the car, run it, and keep it repaired,” and as to Gray’s special relation at the time of the accident, the defendant stated — “ Q. Was he going towards the garage on that day — do you suppose he was? A. I suppose he was; he must have been>s he was going the other way on the bridge to Allegheny. I understood the accident happened on the bridge near the other end. Q. And that is the way he would go to the garage, by way of the Sixth street bridge?” A. Yes. The defendant learned of the accident a day or two after it happened and retained the chauffeur in his employ for more than a year after-wards. Q. You have no recollection of what he was doing on this side of the river with the car that day? A. I can’t remember anything about that. Q. Well, then at that time or now, do you know whether he was — 601 — on that bridge with the car that day by your directions or not? A. I don’t think he was. I don’t remember that he was. Q. Do you remember anything about his having the car that day? A. I know nothing about it. Q. But you do know, or don’t you, that he was not on your business that day? A. I don’t remember him being on my business at that time.” It is not pretended that Gray, the driver, was on business of his own, and this evasive, contradictory, and indefinite denial of the driver’s relation to the defendant at the time the accident happened is not sufficient to shift the burden of proof. From all that he stated it could be clearly and reasonably inferred that the driver was acting within the scope of the master’s employment and for him. The authority to use the machine was general and even the owner could not say that he was acting against his will or independent of it. Taking the car to the garage was clearly a prosecution of the master’s business. The offer to show that Gray frequently took the car out against the owner’s orders or knowledge was not supported by proof that these violations of duty were at any time near to the date of the accident. It was not reversible error to refuse the point as it was presented: Moon v. Mathews, 227 Pa. 488. See also Marcus v. Gimbel, 231 Pa. 200; Bowling v. Roberts, 235 Pa. 89. The remarks of counsel to the jury (eleventh assignment) did not unduly affect the defendant. The court fully explained the items to be considered in returning a verdict in plaintiff’s favor. The amounts suggested by counsel were taken from the evidence as having been actually expended for the wife by the husband, down to the time of trial. This calculation was made from data furnished to the jury by the evidence — it was not an unliquidated claim or a speculative amount in a statement as in Connelly v. Rys. Co., 230 Pa. 366, and she was entitled, if to anything, to a further sum, as stated by the court — “whatever amount, if any, he will reasonably have to pay in the future.” Moreover, the jury did not adopt the theory — 602 — of plaintiff’s counsel as the verdict in his favor represented no more than the amount paid out by him to the time of the trial. The case was ably and fairly tried and after an adequate submission to the jury in an impartial charge resulted in verdicts which were warranted by the evidence. The assignments of error are overruled and the judgment is affirmed. Porter and Morrison, JJ., dissent.