Ellsworth v. Lauth
| Decision Date | 24 April 1933 |
| Docket Number | 127 |
| Citation | 311 Pa. 286,166 A. 855 |
| Parties | Ellsworth v. Lauth, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 28, 1933
Appeal, No. 127, Jan. T., 1933, by defendant, from judgment of C.P. Elk Co., June T., 1930, No. 52, on verdict for plaintiff, in case of Grace Ellsworth v. R. G. Lauth. Affirmed.
Trespass for personal injuries. Before LEWIS, P.J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $16,500. Defendant appealed.
Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.
The judgment of the court below is affirmed.
Charles J. Margiotti, with him Edward Friedman and W. W. Barbour, for appellant.
L. B Gregory, of Driscoll & Gregory, for appellee.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Plaintiff was injured while riding as a guest of defendant, in an automobile owned and being driven by him along a well-paved country road, nearly level, at the rate of 40 to 50 miles an hour. When the car reached the end of that highway defendant, instead of turning it into the intersecting road, continued straight ahead, so that the car jumped a ditch on the far side of the crossroad and overturned in a field just beyond. On this appeal from the judgment entered on a verdict in favor of plaintiff, no question is raised as to defendant's negligence or as to the amount of the verdict. Hence these matters will not be reviewed, but we shall limit this opinion to showing that defendant has no just cause of complaint regarding the matters urged as reasons for reversing the judgment.
Defendant's automobile was a one-seated car, defendant being on the left side thereof, plaintiff in the middle and another lady guest on the right. The time of the accident was an early morning in late October, when day was just breaking. Defendant was an experienced driver; knew the speed at which he was traveling; was acquainted with the route he intended taking, and that he would have to turn into another road at the place of the accident. He had last traveled that route the evening before. Plaintiff was not an automobile driver; did not know how fast the car was going; was not acquainted with the road, though she had been plaintiff's guest on the trip the evening before the accident; and was so seated as to have little opportunity, at that time of day, to see the surrounding country.
Defendant's first contention is that the court below erred in not affirming his point for binding instructions, because of plaintiff's alleged contributory negligence in not seeing the danger which was imminent, and giving him warning of it. This contention is erroneous both on the facts and the law. She was not running the car and defendant was. He knew the speed he was traveling, but she did not. He knew the route and that they were probably nearing the turn in the road, but she did not. Moreover, as the driver of the car, he was bound to keep a continuous lookout to see that they ran into no danger, and she was not: Barth v. Lackawanna & Wyoming Valley R.R. Co., 310 Pa. 168. "The extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case; unless these are manifest and the inferences to be drawn therefrom clear beyond peradventure, the issue involved must be submitted to the jury for determination": Minnich v. Easton Transit Co., 267 Pa. 200, 204. To the same effect are Jerko v. Buffalo, Rochester & Pittsburgh Ry. Co., 275 Pa. 459; Murray v. Baltimore & Ohio R.R. Co., 281 Pa. 474, 476; Schlossstein v. Bernstein, 293 Pa. 245. Under the facts above stated, the court could not have rightfully ruled, as a matter of law, that plaintiff was guilty of contributory negligence; and the jury, after a charge as to which, respecting this point, no complaint is made, found she was not guilty as a matter of fact.
It is next urged that the court below...
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