Grimes v. Yellow Cab Co.
| Decision Date | 23 March 1942 |
| Docket Number | 292,293,295,294 |
| Citation | 344 Pa. 298,25 A.2d 294 |
| Parties | Grimes et al., Appellants, v. Yellow Cab Co. et al |
| Court | Pennsylvania Supreme Court |
Argued January 13, 1942
Appeals, Nos. 292 to 295, incl., Jan. T., 1941, from judgments of C.P. No. 3 (tried in C.P. No. 1), Phila. Co Dec. T., 1938, No. 302, in case of James Grimes et al. v Yellow Cab Company et al. Judgments reversed and venire facias de novo awarded.
Trespass. Before KUN, J.
Compulsory nonsuit entered. Motions to take off nonsuit filed by respective plaintiffs denied. Plaintiffs, respectively appealed.
The assignments of error are sustained, the judgments are reversed, and a venire facias de novo is awarded.
Elias Magil, with him Philip Sterling, for appellants.
Joseph S. Lord, III, with him Wm. A. Schnader, Bernard G. Segal, and Schnader & Lewis, for appellee.
Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
This was an action in trespass, arising out of a collision between a taxicab owned by the Yellow Cab Company and a truck of the Fire Insurance Patrol of the City of Philadelphia. Suit was brought jointly by Thomas Magan, the driver of the truck, and three other employees of the Fire Insurance Patrol who were riding on the back of the truck at the time of the accident, James Grimes, Harry Krueger and George Rothman, to recover for personal injuries, and by the Fire Insurance Patrol of the City of Philadelphia, to recover for property damage to the truck. Magan and the Fire Insurance Patrol were brought upon the record as additional defendants by the Yellow Cab Company, and it filed a counterclaim for damage to its taxicab. Compulsory nonsuits were entered as to the Fire Insurance Patrol and Magan, at the conclusion of the evidence for plaintiffs on liability, and when plaintiffs had completed their case, the trial judge directed verdicts in favor of the Yellow Cab Company and the Fire Insurance Patrol, additional defendant, as to Grimes, Krueger and Rothman, who then suffered voluntary nonsuits as to the additional defendant Magan. No evidence having been presented by the Yellow Cab Company, a verdict was also directed against it on the counterclaim. Magan and the Fire Insurance Patrol filed motions to remove the nonsuits as to them, and Grimes, Krueger and Rothman filed motions for a new trial. All of these motions were dismissed by the court en banc and judgment was entered on the directed verdict in favor of the Yellow Cab Company as to Grimes, Krueger and Rothman. Magan and the Fire Insurance Patrol now appeal from the refusal to take off the nonsuits, and Grimes and Rothman have appealed from the entry of judgment in favor of the Yellow Cab Company. Krueger has not appealed.
The accident occurred at about 9:00 p.m. on March 13, 1938, at the intersection of Twenty-third Street and the Parkway, in the City of Philadelphia, where, as is well known, there are no buildings within hundreds of feet to interfere with the view of approaching drivers. The fire patrol truck had entered the middle lane of the Parkway, which runs northwest and southeast and is eighty feet in width from curb to curb, at Twenty-first Street, and was proceeding northwest, on its own right side of the center lane of the Parkway, about seven feet from the right-hand curb, at a speed of twenty to thirty-five miles per hour, going to a fire. Two large red automatic blinker lights located on the top of the truck, at the front, were in continuous operation, as were also its gong and siren, which were clearly audible for a distance of several city blocks. Magan, the driver, testified that the traffic signal light at the intersection of the Parkway and Twenty-third Street was green in his favor and that there was nothing in the intersection when the truck reached a point about seventy-five feet from the intersection; that he proceeded forward, "looking straight ahead"; that he first saw the taxicab as the rear wheels of the truck cleared the westerly rail of a set of trolley tracks located in the center of Twenty-third Street, which is forty feet in width and runs north and south, and that it was then fifteen to twenty-five feet away. He also testified that after the accident he observed that the windshield and windows of the taxicab were foggy and covered with mist. One Myers, who was riding in the cab of the truck, beside the driver, testified that all he saw of the taxicab was "the flash of yellow" at the instant of the collision. Grimes, Krueger and Rothman, who were riding in the back of the truck, did not see the taxicab at all before the collision, because they were facing backward and had their coat collars up to protect their faces from a cold drizzle or sleet that was falling. The impact did not occur until the truck had traveled three-quarters of the way across Twenty-third Street, when it was struck by the taxicab, near the middle of its left side, with such force that Grimes, Krueger and Rothman were thrown completely out of the truck, Grimes being thrown a distance of thirty feet, and the truck itself, weighing a ton and a half, was thrown against a light standard at the northwest corner, breaking it off, and was turned around, so that when it came to rest it was facing northeast, with its rear wheels on the curb at the northwest corner. The taxicab proceeded for a distance of eighty feet before it was brought to a stop, on the grass plot to the south of the center drive of the Parkway, twenty-five feet from the southwest corner.
The court below concluded that this evidence was insufficient to sustain a recovery on the part of any of the appellants, stating as follows: We think this was error. While it is true that the mere happening of a collision between two motor vehicles, in the absence of evidence as to the manner of its occurrence, affords no proof that one party and not the other was at fault (Brooks v. Morgan, 331 Pa. 235, 239; Hutchinson v. Follmer Trucking Co., 333 Pa. 424, 426; Ranck v. Sauder, 327 Pa. 177, 180), it is also true that the fault of the operator of the alleged offending vehicle need not be established by the direct testimony of eyewitnesses, where such proof is unavailable, as it oftentimes is, but may be shown by proof of attending circumstances from which it can legitimately be inferred that the accident would not have happened if he had used due care (Pfendler v. Speer, 323 Pa. 443, 445; Ranck v. Sauder, supra, 180; Brooks v. Morgan, supra, 239). Such circumstances were here shown.
It has been held, repeatedly, that care at street crossings is the highest duty of a motorist. : Gilles v. Leas, 282 Pa. 318 320. As was said in Byrne v. Schultz, 306 Pa. 427, 433: . See also: Goodall v. Hess, 315 Pa. 289, 292; Fearn v. City of Philadelphia, 320 Pa. 156, 158; Logan v. Bethlehem City, 324 Pa. 7, 11. And this is particularly so where there are unusual weather conditions such as were here shown to have existed at the time of the accident (Hutchinson v. Follmer Trucking Co., supra, 427), and where the driver is entering a main thoroughfare from a side street, as was the driver of appellee's taxicab (McNulty v. Horne Co., 298 Pa. 244, 247). Although no witness described, from actual observation, the course, speed and method of operation of appellee's taxicab, appellants' evidence does establish that the taxicab entered the intersection when the fire patrol truck was less than seventy-five feet from the intersection, with its driver completely oblivious to what his eyes and ears must have told him, and that it proceeded a distance of nearly seventy feet across the center drive of the Parkway into the side of the truck, in spite of the fact that it must have been apparent at all times, from the speed of the truck and the warnings of its blinker lights, which were plainly visible, and its bell and siren, which were clearly audible, that it intended to make the crossing. This evidence, coupled with the evidence as to the distance the taxicab continued after striking the fire patrol truck and as to the violence of the impact, would clearly justify the conclusion that appellee's driver was traveling at an excessive rate of speed, or was not exercising the high degree of watchfulness required of motorists at street crossings, and was, in our opinion, sufficient to carry the question of the taxicab driver's negligence to the jury. See Schoepp v. Gerety, 263 Pa. 538; Robb v. Quaker City Cab Co., 283 Pa. 454; Johnston v. Cheyney, 297 Pa. 199; Smith v. Wistar, ...
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