Alperdt v. Paige

• Decision Date: 03 January 1928
• Docket Number: 306,305
• Citation: 292 Pa. 1,140 A. 555
• Parties: Alperdt et ux., Appellants, v. Paige
• Court: Pennsylvania Supreme Court

140 A. 555

292 Pa. 1

Alperdt et ux., Appellants, v. Paige

Nos. 305, 306

Supreme Court of Pennsylvania

January 3, 1928

Argued December 7, 1927

Appeals, Nos. 305 and 306, Jan. T., 1927, by plaintiffs, from order of C.P. No. 1, Phila. Co., March T., 1924, No. 4140 refusing to take off nonsuit, in case of Benjamin H. Alperdt and Rose Alperdt v. Louis Paige. Affirmed.

Trespass for personal injuries. Before BARTLETT, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiffs appealed.

Error assigned, inter alia, was order, quoting record.

The judgments in both cases are affirmed.

Joseph H. Lieberman, with him Golder & Felger, for appellants. -- The case was for the jury: Wiebe v. Powers, 86 Pa.Super. 389; Speier v. Messersmith, 85 Pa.Super. 233; Bollinger v. Greenaway, 83 Pa.Super. 217; Simon v. Lit Bros., 264 Pa. 121; McClung v. Cab Co., 252 Pa. 478; Wagner v. Transit Co., 252 Pa. 354; Kulp v. Telephone Co., 81 Pa.Super. 296.

The question of contributory negligence of plaintiff's wife was for the jury: Emmelt v. Transit Co., 89 Pa.Super. 417; Nutt v. R.R., 281 Pa. 372; Beck v. R.R., 268 Pa. 571; Azinger v. R.R., 262 Pa. 242; Vocca v. R.R., 259 Pa. 42.

Benjamin O. Frick, for appellee. -- The nonsuit was proper: Frank v. Pleet, 87 Pa.Super. 494; Mehler v. Doyle, 271 Pa. 492; Kutz v. Baking Co., 87 Pa.Super. 297; Davis v. Ice Co., 285 Pa. 177; Com. v. Wheel Co., 290 Pa. 380; Simon v. Lit Bros., 264 Pa. 121; Kilpatrick v. Transit Co., 290 Pa. 288.

Appellants argue the wife plaintiff was a guest. Under the facts of this case, we submit it makes no difference whether she was a guest or engaged in a common purpose with the driver: Dunlap v. Transit Co., 248 Pa. 130; Martin v. R.R., 265 Pa. 282; Hill v. Transit Co., 271 Pa. 232; Kilpatrick v. Transit Co., 290 Pa. 288; Morningstar v. R.R., 290 Pa. 14.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Alperdt, one of the plaintiffs, was driving his automobile for pleasure north on Parkside Avenue in Philadelphia, being accompanied by his wife, sitting on the front seat, with five other members of his family and friends in the rear. When he approached Wynnefield Avenue, his view to the east was unobstructed, and as he slowed his machine almost to a stop on the cross street, he observed the car of Paige, the defendant, traveling down the incline in a westwardly direction. Without looking further he accelerated his speed, and attempted to pass before the approaching automobile. He successfully moved forward to a point where his rear wheels had reached the center of the highway. At this place he again looked and saw the car of defendant thirty feet away. Fearing that a sufficient clearance could not be effected, plaintiff swerved his machine to the left, increasing its momentum, with the result that it ran onto the curb on the northwest corner, striking a tree, and causing the injury complained of. The oncoming automobile did not come in contact with any part of plaintiff's car, but, seeing the imminence of a collision, Paige swerved to his left, causing the car he was driving to overturn. These actions were brought by husband and wife to recover damages for the loss due to the defendant's alleged negligence. A nonsuit was entered, which the court refused to remove, and, from the judgment entered, these appeals are taken.

The right of the driver to recover was denied on the authority of Frank v. Pleet, 87 Pa.Super. 494, where similar facts were considered, and a nonsuit entered because of the contributory negligence of plaintiffs. In the present case, Alperdt was driving on the right side of Parkside Avenue. When he came to the intersection of the cross street he saw Paige's car 80 feet away, moving forward down an incline at thirty miles an hour, or more. He practically came to a standstill at the crossing, then started to advance at 7 or 8 miles an hour, promptly increased to 12. At the time of observation he could have stopped within two feet, and when moving at the greater speed in five or six. Instead of doing so, he went forward without looking out for the automobile advancing from the east until his rear wheels were at the center, a distance of approximately 40 feet, considering the length of the machine, at which time Paige was still 30 feet distant. He then suddenly turned his automobile, causing the injury. Though not struck by defendant, who, in an effort to prevent a collision, upset his own vehicle, yet if the seeming necessity for deflecting his course was due to the negligent conduct of Paige, there could be a recovery, if plaintiff was free from contributory negligence.

Appellant contends it was for the jury to say whether he was in any manner at fault, since he had acquired superior rights by first reaching the street intersection. This fact did not relieve him from his duty to use reasonable care under the circumstances to avoid a collision, and if it appears there was a failure to exercise common prudence, the consequences must be visited upon him, though the defendant was also negligent: Mehler v. Doyle, 271 Pa. 492; Lewis v. Wood, 247 Pa. 545. Plaintiff was not bound to anticipate want of due caution on the part of defendant, yet it was his duty to avoid a collision, if possible, when he saw the danger, though the driver of the other vehicle was acting carelessly, and, if his conduct contributed to the accident, he cannot recover.

Prior to the Act of 1919 (June 30th, P.L. 678), the rule was that the vehicle first approaching a crossing had the right of way (Simon v. Lit Bros., 264 Pa. 121), and the legislation referred to was intended to govern the contingency of two vehicles arriving simultaneously, in which case the relative duties of the parties are defined. Paige had the right of way, as fixed by the statute, and Alperdt was bound to permit him to pass before "unless [the latter was] so far in advance of the other as to afford reasonable time to clear the crossing and thus, in all probability, avoid a collision": Weber v. Greenebaum, 270 Pa. 382. The car first reaching the street intersection is not bound to wait until another coming at a right angle has gone by, if there appears to be ample opportunity to cross ahead (Kutz v. Baking Co., 87 Pa.Super. 297), but as between two arriving practically at the same time, the one not having the legal right of way must give preference to the other: Davis v. American Ice Co., 285 Pa. 177.

When Alperdt saw Paige's automobile approaching, as he said, at more than 30 miles an hour, he must have known that he could not cross in advance. A mathematical calculation will show that if the two cars were moving at the respective rates testified to by plaintiff, Paige would have passed the crossing before Alperdt reached it, or at least arrived at the center at the same time. Instead of keeping any watch on the movement of the automobile coming toward him down the hill, he increased his momentum, and failed to look for the defendant until he had traversed 40 feet, and practically crossed its center. It follows that he contributed to the accident, either by failing to continue to observe, or by testing what was apparently an obvious danger in recklessly advancing when he knew defendant was approaching rapidly from the right. He cannot, therefore, recover, and a compulsory nonsuit was properly entered as to him. A different question presents itself as to the wife, who was sitting on the front seat of the car with her husband, and was injured by its striking the tree, when driven to the left across the curb at the corner.

There appears to be little dissent from the proposition that the negligence of the husband is not to be imputed to the wife unless he is her agent in the matter in hand, or they are jointly engaged in the prosecution of a common enterprise: 20 R.C.L. 151. This general rule has been applied where they were joint occupants of an automobile involved in an accident, as has been decided in practically all of the states where the question has been considered (see note 48 A.L.R. 1077, 1080), including our own: Azinger v. P.R.R. Co., 262 Pa. 242. To charge with contributory negligence on the ground that the party injured was engaged in a joint undertaking, something more must be shown than that the parties were riding together. It must further appear that the passenger had some voice in the control of the vehicle, so as to make it subject to common command, as well as possession: Hoffman v. P. & L.E.R.R. Co., 278 Pa. 246; McLaughlin v. P.R.R. Co., 252 Pa. 32. In itself the mere...