Beam v. Pittsburgh Rys. Co.

• Decision Date: 02 January 1951
• Citation: 366 Pa. 360,77 A.2d 634
• Parties: BEAM v. PITTSBURGH RYS. CO. et al.
• Court: Pennsylvania Supreme Court

77 A.2d 634

366 Pa. 360

BEAM v. PITTSBURGH RYS. CO. et al.

Supreme Court of Pennsylvania.

January 2, 1951

Rehearing Denied Jan. 24, 1951.

Mary R Beam, administratrix of the estate of Frank I. Beam deceased, sued Pittsburgh Railways Company, a corporation and John F. Shook, to recover damages under the Survival and Wrongful Death Act for the death of her husband resulting when his automobile, driven by defendant Shook, collided with a trolley car owned by the corporate defendant. The Court of Common Pleas of Allegheny County at No. 851, October Term 1947, Henry X. O'Brien, J., rendered judgment for plaintiff, and the railway company appealed. The Supreme Court, Nos. 122, 123 March Term, 1950, Horace Stern, J., held that the evidence was insufficient to rebut the presumption that the deceased owner who had been present in his automobile had had power to control it.

Judgment against defendant John F. Shook affirmed; judgment against Pittsburgh Railways Company reversed and judgment entered in favor of that defendant.

D. H. McConnell, Pittsburgh, for appellant.

Edward O. Spotts, Jr., Pittsburgh, for appellee.

Before DREW, C. J., and STERN, STEARNE, JONES, LANDER and CHIDSEY, JJ.

HORACE STERN, Justice.

In order to determine the issue here presented as to plaintiff's right of recovery it will be helpful to make an extended review of the authorities in regard to the question whether the owner of an automobile who is seated therein and who has intrusted the operation of his car to a companion may recover damages for injuries sustained by him by reason of the negligence of a third person if the driver of his own car has also by his negligence contributed to the happening of the accident,-in other words, whether the contributory negligence of the driver is imputable, under such circumstances, to the occupant-owner of the car.

One John F. Shook, aged 27, had known the decedent, Frank I. Beam, aged 42, for about six months, when on December 5, 1946, at about seven o'clock in the evening, he met him by chance in an inn. After staying there together for about a half hour they left in an automobile owned by Beam. When Shook was asked at the trial: ‘ How did it happen that you left the Ro-Val Inn with Mr. Beam?’ he replied: ‘ Mr. Beam asked me to go with him.’ Beam drove the car to the Union Bar where they stayed for another half hour; then they walked from there, a distance of about a half block, to the Moose Club and remained there also for about a half hour. From there they went in Beam's car, Beam driving, about four blocks away, to Segreti's Bar where they remained for about two or three hours. These places were all in Sharpsburg. From Segreti's Bar they started home in the car. Beam lived in the 5300 block of Keystone Street, Pittsburgh, and Shook in the 5200 block of Butler Street, a block away. It was then between eleven and twelve o'clock. They came up the main street in Sharpsburg, over the 62nd Street bridge, and turned off the bridge down Butler Street, inbound toward 61st Street. They were following an inbound trolley car of the Pittsburgh Railways Company, and were going at a rapid rate of speed; coming up toward the rear of that car they swerved to the left of it and on to the outbound track. An outbound trolley car, running at a speed of from 40 to 45 miles an hour, was then from 100 to 150 feet distant; both it and the automobile continued on toward one another; there was testimony to the effect that the motorman did not apply his brakes until within 30 to 35 feet of the automobile. The two vehicles met in a head-on collision with a terrific crash. Beam was killed and Shook was badly injured. Beam's widow, administratrix of his estate, brought suit to recover damages under the Survival and Wrongful Death Acts, 20 P.S. c. 3 Appendix, § 771 et seq., 12 P.S. § § 1601-1604, against Shook and Pittsburgh Railways Company on the theory that their concurrent negligence had caused the accident, and she obtained verdicts aggregating $25,000 against both of them. Pittsburgh Railways Company filed motions for a new trial and for judgment n. o. v., both of which were overruled and judgments were entered on the verdicts, from which judgments Pittsburgh Railways Company now appeals.

Who was driving Beam's automobile at the time of the accident? The plaintiff asserted that Shook was the driver. Shook denied this; he insisted that Beam was driving the car just as he had driven it from the Ro-Val Inn to the Union Bar and from the Moose Club to Segreti's Bar. Witnesses testified, however, that when they came to the automobile after the crash they found both Shook and Beam in the front seat, Shook unconscious, slumped over the steering wheel on the left, and Beam seated on the right with his head down on the dashboard. Beam died almost immediately thereafter.

The court submitted to the jury an interrogatory: ‘ Was John F. Shook the driver of the automobile which was involved in the accident?’ The answer of the jury was ‘ Yes'. That being so, plaintiff's right of recovery against Shook cannot be questioned, because, whatever may have been their legal relation or status as between themselves, if Shook was negligent in the operation of the car plaintiff is entitled to recover from him . Johnson v. Hetrick, Administratrix, 300 Pa. 225, 232, 150 A. 477, 479; Perry v. Ryback, 302 Pa. 559, 564, 153 A. 770, 771; Denton v. Michel's Bakery Co., 363 Pa. 502, 504, 70 A.2d 284, 285; Hopshire v. Yesenosky, 157 Pa.Super. 545, 547, 43 A.2d 351, 352. That Shook was negligent is obvious, turning as he did, at high speed into the outbound track and into the path of a rapidly approaching car. That the motorman of the Pittsburgh Railways Company was also negligent would seem equally obvious if we are to accept, as we must, the testimony most favorable to the plaintiff that the motorman had the oncoming automobile in full sight at a distance of 100 to 150 feet, but nevertheless made no attempt to put on his brakes and stop his car until within 30 to 35 feet. Since, however, the plaintiff claims, and the verdict establishes, that Shook was concurrently negligent,-that is to say, by his contributory negligence helped to bring about the accident and thereby to cause Beam's death, the question arises whether that negligence on the part of Shook was legally imputable to Beam so as to bar the latter's recovery from the Pittsburgh Railways Company. Where the owner of a car is seated therein by the side of friend, who, at the owner's invitation or by his permission, is driving the car, is the owner bound by the driver's negligence so as to become liable to any person injured thereby, or, by the same token, so as to prevent himself, if injured, from recovering against a third person whose negligence was concurrent with that of the driver?

Apparently the earliest authority on the subject in our Commonwealth is the case of McMahen v. White, 30 Pa.Super. 169. There the defendant, riding in his own carriage, permitted his guest to drive; there was a collision with another carriage the occupant of which, being injured, sued the defendant and obtained a verdict and judgment against him. The judgment was affirmed. It was admitted that the defendant personally was not guilty of any negligence; there was no evidence that he expressly directed, or tacitly assented to, the manner in which the carriage was driven. The court held, however, that the relation between defendant and his companion, who was driving, was that of master and servant as distinguished from that of bailor and bailee, because the test was whether he had the right to control the manner of driving, that there was nothing to show that he had parted with that right, that he could have retaken possession of the reins at any moment and the driver was bound to obey his directions or surrender the reins to him.

In Wollaston v. Park, 47 Pa.Super. 90, a woman who had hired an automobile permitted her guest to take the wheel and the guest drove the machine negligently and injured a person on the road. It was held that she was liable in damages for the injuries sustained, because ‘ She had absolute control of the person who was thus driving, for she clearly had the right at any moment to withdraw him from the management * * *. She was his superior in the management of the car, at that time, and he was her representative, servant or agent in that management.'

In Bell v. Jacobs, 261 Pa. 204, 104 A. 587, the defendant, the owner of an automobile, had secured an expert workman to make some repairs to it, and, before leaving it at the repair shop, they were taking it for a drive to see what was needed. The workman was driving and defendant sat beside him but made no request or suggestion as to the driving of the car. The car collided with a motorcycle and killed the person riding it. The defendant was held liable. The court said that it was defendant's car and he could not be excused because he was not personally at the wheel.‘ A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driver. There is a presumption, not here rebutted, that an owner present in his car has power to control it .'

In Schofield v. Director General of Railroads, 276 Pa 508, 120 A. 449, the plaintiff, who had the use of a truck, requested a friend, without compensation, to drive it for him. The plaintiff was in the truck. It was held that the relation between them was that of master and servant, and that the contributory negligence of the driver in negligently crossing a railroad track so that the truck was struck by a train would be imputed to the...