Warlich v. Miller

• Decision Date: 29 February 1944
• Docket Number: No. 8513.,8513.
• Parties: WARLICH v. MILLER et al.
• Court: U.S. Court of Appeals — Third Circuit

141 F.2d 168 (1944)

WARLICH v. MILLER et al.

No. 8513.

Circuit Court of Appeals, Third Circuit.

Argued January 7, 1944.

Decided February 29, 1944.

John R. Bredin, of Pittsburgh, Pa. (Dalzell, McFall & Pringle, of Pittsburgh, Pa., on the brief), for appellant.

John H. Sorg, of Pittsburgh, Pa., for appellees.

Before BIGGS, JONES, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This is an action to recover for personal injuries and property damage resulting from a collision between plaintiff's automobile and defendant's truck. At the close of plaintiff's case the trial court directed a verdict for defendants and subsequently refused to set aside the directed verdict or grant a new trial. The plaintiff appeals from the judgment against her. The only question before us is whether she made out a case for the jury.

The collision occurred on the Pennsylvania Turnpike on December 28, 1941, at about 5:45 P. M. The Turnpike is a "super-highway", having four lanes of traffic, two eastbound and two westbound, separated by a wide stripe. The portion of the highway with which we are concerned was straight and level. The plaintiff produced two witnesses: one was herself and the other an occupant, but not the driver, of defendant's truck at the time of the collision.

Plaintiff testified concerning the accident as follows: Both vehicles were proceeding on the eastbound lanes. Initially, the truck was ahead of her but later she passed it. She was then overtaken by the truck. Subsequently plaintiff decided to pass the truck again. Both vehicles were travelling about 50 m.p.h. Plaintiff increased her speed slightly and pulled out in the left lane to pass, blowing her horn several times to make sure the truck driver would hear her. As she came alongside, to about the middle of the truck, the driver of that vehicle increased its speed to about 61 m.p.h. Plaintiff increased her speed. She "had just passed" the cab of the truck, and was proceeding perfectly straight, without changing her direction in any way when she felt a crash at the right rear of her car, was knocked unconscious, revived to see herself heading for an embankment, felt another crash and awoke in a turned over car. On cross-examination plaintiff testified that the truck had not been going steady, but "a little bit to right and left and center" that the truck was "not zigzagging, but just changing off a little bit. * * * he did not keep a straight line." The truck had been proceeding in this manner for some time before she attempted to pass it. Before she passed it the second time it was bearing slightly from the right side of the road to the left.

Plaintiff's other witness testified that when all but the right rear fender of plaintiff's car had passed the front of the truck, her car began to swerve to the right to go into the right lane, and that contact then occurred between the truck and automobile. He also stated that when the automobile was passing the truck, the truck at no time turned left. At the close of the plaintiff's evidence the court directed a verdict against her.

The operative facts occurred in Pennsylvania. Suit having been brought in the federal court in that state, Pennsylvania tort law controls the rights and liabilities of the litigants. Furthermore, at this stage of the suit the evidence is to be considered in the light most favorable to the plaintiff and all reasonable inferences which may be deduced from the evidence in her favor aid her case. So considered, we believe that plaintiff's evidence entitled her to go to the jury.

The Pennsylvania legislature has defined the standard of care to be observed by a motorist on a highway when being overtaken by another motorist. By statute,¹ a driver of a vehicle about to be overtaken and passed by another vehicle approaching from the rear, must give way to the right in favor of the overtaking vehicle on suitable and audible signal being given by that vehicle. Furthermore, the driver of the overtaken vehicle must not increase its speed until completely passed by the passing vehicle. It is apparent that one of the legislative purposes was to set up a standard of care to avoid collisions where one is passing another's car. If a motorist being overtaken does not adhere to the standard specified and this breach of the statutory standard of care causes injury to an overtaking motorist, who is himself free from contributory negligence, then the former is liable to the injured party. Jinks v. Currie, 1936, 324 Pa. 532, 188 A. 356; Gaskill v. Melella, 1941, 144 Pa.Super. 78, 18 A.2d 455; 2 Restatement, Torts 1934, § 286.

Here, the defendant's driver, according to the evidence, and inferences therefrom favorable to the plaintiff, breached the statutory duty owed to the plaintiff by (1) increasing his speed and (2) not keeping his vehicle to the right side of the road, when the plaintiff sought to pass after having given the required signal. A jury could well find, if it believed the plaintiff's testimony, that the failure to observe the statutory standard of care was the legal cause of the collision. Furthermore, even apart from the statute, there is sufficient evidence for a jury to find that the conduct of defend...