Griffith v. V. A. Simrell & Son Co

• Decision Date: 25 May 1931
• Docket Number: 56
• Citation: 155 A. 299,304 Pa. 165
• Parties: Griffith, Appellant, v. V. A. Simrell & Son Co
• Court: Pennsylvania Supreme Court

155 A. 299

304 Pa. 165

Griffith, Appellant, v. V. A. Simrell & Son Co

No. 56

Supreme Court of Pennsylvania

May 25, 1931

Argued April 13, 1931

Appeal, No. 56, Jan. T., 1931, by plaintiff, from judgment of C.P. Luzerne Co., March T., 1926, No. 1330, for defendant n.o.v., in case of Kathryn Griffith v. V.A. Simrell & Son Company. Reversed.

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

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $10,500. Judgment for defendant n.o.v. in opinion filed by FINE, J., for the majority of the court in banc, McLEAN, P.J., and JONES, J., dissenting. Plaintiff appealed.

Error assigned was judgment for defendant n.o.v., quoting record.

The judgment is reversed, with directions to the court below to reinstate the motion for a new trial and to grant it.

Frank A. McGuigan, with him Edward McGovern, for appellant. -- There was sufficient evidence produced by plaintiff on which the jury could base its verdict for plaintiff: Fuller v Coal Co., 268 Pa. 328; Wiles v. Emerson-Brantingham Co., 267 Pa. 47; Simon v. Myers, 284 Pa. 3; Hunter v. Pope, 289 Pa. 560.

The jury have a right to find that the operator of the automobile was negligent in driving in the groove of wet tracks and in applying increased power when trying to turn out where this resulted in the automobile skidding across the street onto the sidewalk.

It is a well established rule that where the facts are in dispute, or more than one inference can be drawn therefrom, the issue whether or not the servant was acting for defendant and within the scope of his employment is for the jury and the surrounding facts and circumstances are to be considered by the jury in this inquiry: Petruska v. Motor Car Co., 83 Pa.Super. 112, 114; Parker v. Car Co., 241 Pa 461; Zondler v. Supply Co., 277 Pa. 98; Blaker v. Electric Co., 60 Pa.Super. 56.

Failure to comply with the Motor Vehicle Act with reference to transfer of title makes the sale illegal, unenforceable and void: Miles v. Zorzi, 88 Pa.Super. 231, 233; Brenner v. Pecarsky, 86 Pa.Super. 414.

Richard B. Sheridan, with him Robert J. Doran, for appellee. -- The evidence showing how the accident happened, being the testimony of witnesses for plaintiff, the question of their credibility could not be submitted to the jury, because, by offering them, plaintiff gave them the stamp of credibility: Dunmore v. Padden, 262 Pa. 437; Krewson v. Sawyer, 266 Pa. 284.

Plaintiff's case is not helped by the fact that Bowie's foot slipped off the foot pedal and left the car off in second gear, and that this caused the impact that shoved the Chevrolet over the curb, nor by the argument that this occurrence in his effort to battle the tight situation confronting him, is the black spot that convicts Bowie of negligence, because, the most that can be predicated of the incident is that in his sincere attempt to avoid the disaster, unexpectedly confronting him, he let his foot slip, or inadvertently put his foot on the wrong pedal. But this would not be sufficient to predicate a finding of negligence on: Simpson v. Jones, 284 Pa. 596; Ferrell v. Solski, 278 Pa. 565.

We have not been able to find any case in Pennsylvania where recovery has been sustained in an automobile case where the only fact relied on to show negligence was that the machine skidded when traveling within the limit permitted by law.

Bowie was not engaged in his master's business within the scope of his employment: Scheel v. Shaw, 252 Pa. 451; Felski v. Zeidman, 281 Pa. 419.

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

OPINION

MR. JUSTICE SCHAFFER:

By a divided court it was determined that the relation of master and servant did not exist between Bowie, the driver of the automobile which killed plaintiff's husband, and the defendant summoned in this action to respond in damages therefor, or, if that relation existed, the driver at the time was not engaged in his employer's business. Appellee not only affirms the correctness of these conclusions but advances the further argument that it was not shown that the driver of the car was in any wise negligent. Plaintiff recovered a verdict for $10,500, which the court in banc set aside, entering judgment for defendant.

We have no doubt as to the negligence of the driver of the car under the proofs as they were adduced. Plaintiff's decedent had drawn his automobile up alongside the curb on one of the main streets of the City of Pittston for the purpose of changing a tire. He was thus engaged, standing on the footwalk, when the car which was being driven by Bowie, a mechanic employed by defendant, a dealer in automobiles, swerved from the opposite side of the street, struck the standing car with much force, drove it up on the sidewalk, the deceased being pinioned between his car and a fence, with resulting injuries from which he died. A recital of these simple facts would quite convincingly show a negligent operation of the car. But, says the defendant, the evidence shows that Bowie was not driving at a rate in excess of that which was lawful and there is nothing to show that the speed was excessive under the circumstances. Irrespective of any question of speed, we think the presumption of negligence arises where it appears that the driver of an automobile permits his car to deflect from its course and to dash or skid across a highway and injure a person on the sidewalk: Wallace v. Keystone Automobile Co., 239 Pa. 110. The testimony shows that the street was wet and slippery and that the driver was endeavoring to get the car out of the street car track. In so doing he was bound to take into account the slippery condition of the street and to reduce his speed to the point where he could control the movements of the car. Furthermore, Bowie's own testimony shows his want of care. He said he was driving about thirty miles an hour in the car track, "it was very slippery," the car started to skid and he put on the brakes to get out of the car tracks. "I shoved my both feet forward and I hit the shifting lever, it was in high speed and I hit it to throw it in neutral, I imagined it was in neutral and I got to this car parked on the other side of the street, my car was practically stopped before I hit it. When I left off the clutch, off this leg [he had but one good leg and he was pointing to his artificial one], I slipped off the foot pedal, and I put my good leg over on the foot pedal, and left it off in second gear which I didn't know at that time, car was running the motor very fast, and when the [other] car was struck just shoved [it] over the curb and up against the fence." It could not be said under these circumstances that the automobile was being operated with due care.

This is not such a case as Simpson v. Jones, 284 Pa. 596...