Arnold v. McKelvey

• Decision Date: 17 April 1916
• Docket Number: 219
• Citation: 98 A. 559,253 Pa. 324
• Parties: Arnold v. McKelvey, Appellant
• Court: Pennsylvania Supreme Court

98 A. 559

253 Pa. 324

Arnold v. McKelvey, Appellant

No. 219

Supreme Court of Pennsylvania

April 17, 1916

Argued March 6, 1916

Appeal, No. 219, Jan. T., 1915, by defendant, from judgment of C.P. Northampton Co., Sept. T., 1912, No. 39, on verdict for plaintiff, in case of Mary Arnold and Harry Arnold, her husband, v. Frank G. McKelvey. Affirmed.

Trespass to recover damages for personal injuries. Before ALBERT W JOHNSON, J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff, Mary Arnold, for $2,000.00 and for Harry Arnold for $3,081.92, and judgment thereon. Defendant appealed.

Errors assigned were answers to points, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n.o.v.

The assignments are all overruled and the judgment is affirmed.

P. C Evans, of Evans & Beck, for appellant. -- The evidence of negligence was insufficient to carry the case to the jury.

The plaintiff, Mary Arnold, was guilty of contributory negligence: Kauffman v. Nelson, 225 Pa. 174; Harris v. Commercial Ice Co., 153 Pa. 278; McIlhenney v. Philadelphia, 214 Pa. 44.

The refusal of the point set forth in the second assignment of error was erroneous: Dennison v. North Penn Iron Co., 22 Pa.Super. 219.

Wm. Fackenthal, for appellee. -- The plaintiff, Mary Arnold, was not guilty of contributory negligence, as a matter of law: Miller v. Lewistown Electric Light, Heat & Power Co., 212 Pa. 593; Ley v. Henry (No. 1), 50 Pa.Super. 591.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiffs, Harry Arnold and Mary, his wife, sued in trespass to recover damages for personal injuries to the latter, alleged to have been caused on September 18, 1911, by the negligence of the defendant's chauffeur in operating an automobile; the verdicts favored the plaintiffs and the defendant has appealed.

In disposing of appellant's principal contention, we shall first quote from the opinion of the court below: "The accident occurred on the west side of South Third street between Pine and Ferry streets, in the City of Easton; the automobile was going south . . . , and Mary Arnold was crossing . . . diagonally from the east to the west side. The plaintiffs' evidence tended to show that, when Mrs. Arnold was approaching the west side of the street, she first noticed the car approaching from the north. She then stopped at a place of safety to allow the car to pass by in front of her. Had the car continued in the direction in which it was going at the time Mrs. Arnold stopped, no injury would have occurred to her. But, while approaching Mrs. Arnold, within a short distance of her, the driver of the car turned around, apparently to speak to Mrs. McKelvey, the defendant's wife, seated in the car, and at the same time the car changed its direction, turned to the left, towards Mrs. Arnold, and, before she was able to get back and away, ran against her and severely injured her. The defendant offered no testimony. Two questions arise in this case, the negligence of the defendant and the contributory negligence of Mary Arnold. Without doubt, there is evidence that the defendant's driver was negligent in operating his car at the time of the accident, if plaintiffs' evidence is to be believed. The place of the accident was in the heart of Easton, on a frequently traveled street, and it was the duty of the driver to look where he was going and so operate his car as not to run into other persons using the street. We do not think there is such evidence of contributory negligence as would warrant a court in declaring as a matter of law that the plaintiffs are not entitled to recover. According to Mary Arnold's testimony, she stopped before reaching a place of danger to allow the car to go by, and, had the car continued in...