Hazzard v. Carstairs

• Decision Date: 09 February 1914
• Docket Number: 198
• Parties: Hazzard v. Carstairs, Appellant
• Court: Pennsylvania Supreme Court

90 A. 556

244 Pa. 122

Hazzard v. Carstairs, Appellant

No. 198

Supreme Court of Pennsylvania

February 9, 1914

Argued January 9, 1914

Appeal, No. 198, Jan. T., 1913, by defendant, from judgment of C.P. No. 4, Philadelphia Co., Dec. T., 1911, No. 4176, on verdict for plaintiff in case of William F. Hazzard v. Mary W. Carstairs. Affirmed.

Trespass to recover damages for personal injuries. Before WILLSON P.J.

The opinion of the Supreme Court states the case.

The jury found a verdict for plaintiff for $8,000. Defendant appealed.

Error assigned, inter alia, was in refusing defendant's motion for judgment non obstante veredicto.

Assignments of error overruled and judgment affirmed.

Layton M. Schoch, with him Chester N. Farr, Jr., for appellant. -- There was no proof of negligence on the part of the chauffeur: Downey v. Pittsburgh Rys. Co., 219 Pa. 592; Gallagher v. Snellenburg, 210 Pa. 642.

The case is wholly barren of any fact from which the jury might have found or properly inferred that the chauffeur was acting under the direction or with the knowledge, consent or subsequent ratification of this appellant: Fire Insurance Patrol v. Boyd, 120 Pa. 624; Lotz v. Hanlon, 217 Pa. 339.

Maurice W. Sloan, for appellee. -- This case comes under the rule laid down in the case of Davidson v. Traction Co., 4 Pa. Superior Ct. 86.

The doctrine of respondeat superior applies: Marcus v. Gimbel, 231 Pa. 200; Lotz v. Hanlon, 217 Pa. 339; Moon v. Matthews, 227 Pa. 488.

Before BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN

On April 3, 1911, at a little after five o'clock p.m., the appellee was riding west on a motorcycle on the north side of Walnut street, in the City of Philadelphia. When he was at a point about fifty feet east of Thirty-seventh street an automobile owned by the defendant and operated by her chauffeur collided with him, the collision resulting in most serious injuries to him. From the judgment which he recovered for the same this appeal is before us.

At the time of the collision the appellee was on the side of the street where he ought to have been, and it was the duty of the chauffeur to have passed him to the right or south, as the street runs east and west: Foote v. American Product Company, 195 Pa. 190. But though this is so, if the collision occurred under the circumstances detailed by the chauffeur and the two occupants of the automobile, called as witnesses for the defendant, it was an unavoidable accident. He testified that, as he approached Thirty-seventh street, on the south side of Walnut, close to the curb, he saw, through the open yard in front of the building at the corner, a team coming up Thirty-seventh street at a rapid rate of speed. He said it was coming at a "terrible rate," and he thought "it was a runaway." He further testified that the only thing he could do to avoid collision with it was to turn his car over to the north side of the street. This he did, cutting diagonally over from the southwest corner to the northeast corner of the intersecting streets. After he had thus avoided collision with the team, he reduced the speed of his car to about three miles an hour, and then saw the motorcycle coming towards him, but turning to the south side of the street. He then increased the speed of his car, driving in close to the north side of the street, but, according to his testimony, the appellee had changed his course from the south to the north, and ran into him. A daughter of the defendant and a companion who was with her in the car corroborated the chauffeur in his account of the accident. But quite a different situation was presented by the witnesses called for the plaintiff, and, in view of it, the court could not have said, as a matter of law, that the injury of the appellee was not the result of the negligence of the chauffeur in driving...