Gerhart v. East Coast Coach Co.

• Decision Date: 20 March 1933
• Docket Number: 118
• Citation: 166 A. 564,310 Pa. 535
• Parties: Gerhart v. East Coast Coach Co., Appellant
• Court: Pennsylvania Supreme Court

166 A. 564

310 Pa. 535

Gerhart v. East Coast Coach Co., Appellant

No. 118

Supreme Court of Pennsylvania

March 20, 1933

Argued January 24, 1933

Appeal, No. 118, Jan. T., 1933, by defendant, from judgment of C.P. Bucks Co., Oct. T., 1930, No. 1, on verdict for plaintiff, in case of Catherine L. Gerhart v. East Coast Coach Company. Affirmed.

Trespass for death of plaintiff's husband. Before KELLER, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $7,000. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

Judgment affirmed.

C William Freed, for appellant. -- Deceased was contributorily negligent in venturing on the highway, with his back turned to oncoming traffic: Weaver v. Pickering, 279 Pa. 214; Goff v. Boro., 299 Pa. 343; Harris v. Ice Co., 153 Pa. 278; Watson v. Lit Bros., 288 Pa. 175; Grein v. Gordon, 280 Pa. 576; Rhoads v. Herbert, 298 Pa. 522.

H. E. Grim, of Grim & Grim, for appellee. -- Evidence of value of deceased's services is competent: Shellenberger v. Transportation Co., 303 Pa. 122; Baxter v. Ry., 264 Pa. 468; Dempsey v. Scranton, 264 Pa. 495.

Before FRAZER, C.J., KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE KEPHART:

Appellee's husband conducted a gasoline station, restaurant and parking place along the Lincoln Highway, 700 feet west of the Langhorne Speedway. Races were being held on July 4, 1930, and for several hours before the accident he had been motioning motorists on the highway to park their cars on his land. As the races started he practically ceased this solicitation and was standing on his own land 4 or 5 feet from the highway, facing toward Philadelphia. Appellant's bus, carrying passengers from New York to Philadelphia, traveling at a speed of 40 to 45 miles an hour, left the concrete road or highway and struck deceased in the back just as he was in the act of lighting a cigarette. The impact caused injuries from which he subsequently died. The court below sustained a verdict of $7,000 for appellee for damages for the loss of her husband. Judgment having been entered, this appeal followed.

There was ample evidence to sustain the jury's finding that defendant was negligent. Appellant's testimony placed deceased on the concrete portion of the road, facing Philadelphia, with his back toward the approaching bus; he had stepped there immediately before the bus approached. From defendant's standpoint, the accident was unavoidable, being attributable solely to deceased's negligence; had he observed the traffic and exercised the slightest care for his safety, he would not have been injured. The questions of negligence and contributory negligence were submitted to the jury under proper instructions and the verdict is conclusive upon this aspect of the case. The verdict being for the deceased's widow, the facts it established were that deceased was off the highway on his own land when appellant's bus struck him. Where one is on his own premises, there is no duty resting on him to anticipate that a motor bus, automobile or other destructive agency will enter it and inflict bodily injury. He is under no duty to observe traffic moving on the highway. If, however, the use of his land extended an invitation to automobilists and others to use it for parking or otherwise, he must anticipate their action. There is no evidence here that the place of the accident was used for that purpose or that this bus wanted to park or make other use of the land. He was as to it under no duty while on his premises, and was not guilty of contributory negligence in failing to observe its approach. Of course, had the jury found the facts as appellant's testimony showed, under the court's instruction, deceased would have been contributorily negligent.

The court below did not err in refusing to strike out the testimony of the two witnesses who described the manner in which the bus was being operated as it passed a position 270 feet east of where the accident occurred. Such testimony was competent; its weight and credibility was for the jury: Shellenberger v. Reading Transportation Co., 303 Pa. 122, 127. The motion was to strike out all the testimony of these witnesses, some of which was undoubtedly competent; when a motion is made to strike from the record all the testimony of a witness, the incompetent part should be pointed out. Otherwise a trial court cannot be convicted of error in refusing the motion: Com. v. Arcurio, 92 Pa.Super. 404, 407; Wadsworth v. Manufacturer's Water Co., 256 Pa. 106, 116; Righter v. Parry, 266 Pa. 373, 378.

Appellant's chief complaint is to the admission of testimony to establish damages. The right to sue for death occasioned by negligence did not survive at common law and exists today only by statute. The measure of damages in such cases is the pecuniary loss suffered by the plaintiff. Deceased purchased the property some 13 months before and had invested his capital there. The business was operated by him with the aid of his family, consisting of his wife, son and daughter-in-law, and two grandsons. The record presents a situation in which it is impossible to distinguish that portion of the earnings of the business which were due to deceased's personal, bodily or mental effort, from that derived from capital investment and the labor of others.

The rule was early laid down by this court that the pecuniary loss for which a wife might recover is "what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit [of ...