Campagna v. Lyles

• Decision Date: 25 November 1929
• Docket Number: 182
• Citation: 298 Pa. 352,148 A. 527
• Parties: Campagna, Appellant, v. Lyles
• Court: Pennsylvania Supreme Court

148 A. 527

298 Pa. 352

Campagna, Appellant, v. Lyles

No. 182

Supreme Court of Pennsylvania

November 25, 1929

Argued October 10, 1929

Appeal, No. 182, March T., 1929, by plaintiff, from judgment of C.P. Allegheny Co., July T., 1924, No. 2444, on verdict for defendant, in case of Michael Campagna v. Emanuel Lyles. Affirmed.

Trespass for personal injuries. Before MACFARLANE, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant. New trial refused, in opinion by PATTERSON, J. Plaintiff appealed.

Errors assigned were various rulings and instructions and refusal of new trial, quoting record seriatim.

The judgment is affirmed.

George Y. Meyer, with him Francis A. Wolf, for appellant. -- The evidence establishes as a matter of law that the negligence of appellee's driver brought about, or at least was the main factor in bringing about, the accident in this case, and the trial judge erred in leaving this question to the jury Weber v. Greenebaum, 270 Pa. 382; Frank v Pleet, 87 Pa.Super. 494; Close v. Electric Co., 90 Pa.Super. 260; Feldman v. Chernekoff, 291 Pa. 456; Alperdt v. Paige, 292 Pa. 1.

The charge of the court was erroneous in a matter even more prejudicial to appellant's case when it laid down to the jury, without clear qualification or subsequent correction, that appellant could not recover if the driver of the auto, in which he was riding as a guest, was negligent: Smith v. Transit & Light Co., 282 Pa. 511; Wolf v. Sweeney, 270 Pa. 97; Nutt v. R.R., 281 Pa. 372; Davis v. Ice Co., 285 Pa. 177; Kilpatrick v. P.R.T., 290 Pa. 288.

W. Clyde Grubbs, for appellee, cited: Kutz v. Baking Co., 87 Pa.Super. 297, 300, 301.

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

OPINION

MR. JUSTICE SADLER:

Michael Campagna, an employee of one Ziskind, was injured in a collision at the intersection of Market and 11th Streets in the Borough of McKeesport. The latter, with plaintiff on the front seat beside him, was driving a Ford car south on the first named highway, and, according to his evidence, signalled about 25 feet before reaching the point of crossing. His testimony indicated that his speed was not more than ten to fifteen miles an hour, and, further, that defendant's machine was first seen by him when only 8 or 10 feet away, approaching at right angles from the cross street. It was claimed that Ziskind had the right of way, since the cars arrived simultaneously at the center, but this assertion was contradicted by defendant, whose car was moving on 11th Street at a rate of less than 10 miles per hour, as was sworn to, and is indicated by its almost instantaneous stopping when struck squarely on the side by the Ziskind car. The driver of the truck insisted he had arrived first at the intersection while the Ford was still north on Market Street, and had nearly crossed when the collision occurred. Though the car in which plaintiff was riding had the right of way, if, as a matter of fact, the two cars arrived at the crossing at the same time, yet, in view of the disputed testimony, it could not be said, as a matter of law, that the truck driver was negligent in proceeding. If his story is to be believed there was an apparent opportunity to pass safely in front before Ziskind reached his moving truck. Though Ziskind had the right to first proceed, under the statute, as he was approaching from the right, nevertheless he was under the duty of having his car under control as he approached the intersection, and to exercise due care to prevent the collision.

"Drivers, no matter whether they have the technical right of way, must drive as would prudent men, and it would be folly, and negligence, for a driver to insist upon his technical right of way when a prudent man would realize it would only bring danger upon himself and to other people": Robinson v. Berger, 295 Pa. 95, 98. The statute does not give the driver of the car an absolute right to cross an intersecting street regardless of the fact that another car is approaching from the left. If he sees he cannot pass in advance of the second vehicle he is bound to use due care to prevent an accident: Alperdt v. Paige, 292 Pa. 1. When the facts and inferences may properly lead to the conclusion that the cause of the accident was the negligence of the one having the statutory right to proceed, the question is one for the jury to pass upon: Ensell v. Atlantic Refining Co., 92 Pa.Super. 586; Hood v. Urban, 93 Pa.Super. 4. The trial judge could not have declared as a matter of law, under the conflicting evidence here presented, that the negligence which caused the accident was that of defendant, not contributed to by Ziskind, but he properly submitted this question to the body legally authorized to determine the facts. No just complaint can be made as to the charge of the court in reference to these questions involved, and the second and third assignments are not sustained.

Campagna was injured as a result of the collision and brought two suits. The first was against Ziskind, the driver of the car in which he was riding. In the statement filed in that action he expressly averred that Ziskind was advancing at a reckless and excessive speed, without warning, and not having his car under adequate control. Though these allegations are not controlling in this second suit against the defendant, driver of the truck, approaching from the cross street, yet the sworn statements then made were properly for the consideration of the jury, in contradicting his testimony in the present case as to the care exercised by the driver of the car in which he was riding, and in determining the weight to be given to his evidence which tended to exonerate him from any negligence. The action against Ziskind, first tried resulted in a judgment for defendant on the ground that plaintiff was at the time his employee, and then engaged in the course of his employment, for he was, at that time, being driven by the one who had engaged his services to the place...