Miller v. Montgomery

• Decision Date: 02 July 1959
• Citation: 152 A.2d 757,397 Pa. 94
• Parties: Calvin E. MILLER, deceased, Pauline F. Miller, Successor to Calvin E. Miller, Appellant, v. Kenneth Derwood MONTGOMERY, Administrator of the Estate of James H. Montgomery, deceased.
• Court: Pennsylvania Supreme Court

152 A.2d 757

397 Pa. 94

Calvin E. MILLER, deceased, Pauline F. Miller, Successor to

Calvin E. Miller, Appellant, v. Kenneth Derwood MONTGOMERY, Administrator of the Estate of

James H. Montgomery, deceased.

Supreme Court of Pennsylvania.

July 2, 1959.

W. Davis Graham, Kittanning, for appellant.

Robert E. Ashe, Ashe & Ashe, Kittanning, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

McBRIDE, Justice.

This action in trespass was instituted by Calvin E. Miller against Kenneth D. Montgomery, Administrator of the Estate of James H. Montgomery, deceased.

The evidence is necessarily meager in that Montgomery, who was the operator of the motor vehicle in which Miller was a passenger, was killed in the accident and Miller himself died prior to trial. No eyewitness was available. However plaintiff did introduce the testimony of three persons who came upon the scene immediately after the accident. From their testimony it appears that Miller and Montgomery were employees of the Pennsylvania State Highway Department. They quit work at 4:30 p. m. on September 28, 1950 and started toward their homes in Kittanning upon State Highway Route 85 in a pick-up truck owned and operated by Montgomery. Miller was sitting beside him when they left their work project. Troutman and Fair, who were fellow workmen of Miller and Montgomery, testified that they were also proceeding upon the same highway toward Kittanning and came to where the highway crosses Cowanshannock Creek. At this point the road curved to the left in the direction in which they were proceeding and the berm was observed to be disturbed or torn up. The guard rail at or near the bridge was broken or bent and Montgomery's truck was observed in the creek, lying on its roof, with its wheels in the air. Miller was pinned under the truck and only released in time to prevent his being drowned, but Montgomery was dead when taken from the wreckage. The narration of these circumstances was confirmed by Dr. Stitt, who was also proceeding along the same highway and happened upon the scene at about the same time. That is all of the testimony since defendant introduced no evidence. The court, which, at the close of plaintiff's evidence, had refused defendant's motion for a compulsory non-suit, submitted the case to the jury which returned a verdict in favor of defendant on which judgment was entered.

Plaintiff urges, on appeal, that the trial court committed reversible error in that: (1) the charge to the jury placed an improper emphasis on the burden of proof upon plaintiff; (2) in charging at all on the question of contributory negligence of plaintiff; and (3) it incorrectly affirmed two points for charge requested by defendant. These allegations will be considered seriatim.

The plaintiff contends that the lower court erred in placing undue emphasis on the burden of proof upon him because of a failure to properly apply the doctrine of exclusive control. The doctrine of exclusive control, however, has no application to the facts of the instant case. As we are reversing for other error, we feel that it is incumbent upon us to direct the trial judge on retrial to refrain from any discussion of such doctrine.

Plaintiff next alleges that the trial court committed reversible error in charging on contributory negligence. The court said:

'Well, then we come to the next question in the case. That is, whether there was any contributory negligence on the part of Mr. Miller. Did he use due care, under the circumstances? Did he act as an ordinary, careful, prudent person would under like or similar circumstances? If he did not, he would be guilty of negligence, and if it contributed in the slightest degree to the accident and injury, again there can be no recovery. There must be a verdict in favor of the defendant.'

The plaintiff does not contend there is any error in the content of the charge, for it is apparent that the charge is accurate and correct as an abstract proposition of law. Rather, it is contended that no charge at all as to contributory negligence should have been given or the court should have ruled as a matter of law that plaintiff was not guilty of contributory negligence. Again, it must be remembered that plaintiff's case disclosed no contributory negligence and no evidence was offered by defendant from which the contributory negligence of plaintiff could be inferred. Since the burden of establishing contributory negligence is on the defendant it follows that where...