Kurtz v. Tourison

• Decision Date: 27 June 1913
• Docket Number: 66
• Citation: 241 Pa. 425,88 A. 656
• Parties: Kurtz v. Tourison, Appellant
• Court: Pennsylvania Supreme Court

88 A. 656

241 Pa. 425

Kurtz v. Tourison, Appellant

No. 66

Supreme Court of Pennsylvania

June 27, 1913

Argued April 1, 1913

Appeal, No. 66, Jan. T., 1913, by defendant, from judgment of C.P. No. 5, Philadelphia Co., Dec. T., 1910, No. 1162, on verdict for plaintiff in case of John P. Kurtz and Catharine Kurtz, his wife, v. Ashton S. Tourison. Affirmed.

Trespass to recover damages for personal injuries. Before ORMEROD, J. specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $7,000, which the court reduced to $5,000 and judgment thereon. Defendant appealed.

Errors assigned, among others, were in refusing to give binding instructions for defendant, and to enter judgment for defendant n.o.v.

The assignments of error are overruled and the judgment is affirmed.

John Stokes Adams, for appellant.

John J McDevitt, Jr., with him Charles H. Edmunds, for appellee.

Before FELL, C.J., POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

John P. Kurtz and Catherine Kurtz, his wife, brought this action to recover damages for personal injuries alleged to have been suffered by the latter as the result of the negligent operation of an automobile by Charles Deily, an employee of the defendant. The plaintiffs recovered verdicts on which judgment was entered, and the defendant has appealed. The appellant's statement of the questions involved presents two points for our determination: (1) Was the plaintiff, Mrs. Kurtz, guilty of contributory negligence? (2) Was there "any evidence from which the jury could find that the relation of master and servant existed between the defendant and the driver of the automobile, and that at the time of the accident the machine was being operated under the defendant's direction?"

It appears from the testimony of the plaintiff and her witnesses that Musgrove street, about thirty feet wide, running north and south, is intersected at right angles by Pleasant street; that at this intersection the plaintiff was endeavoring to cross Musgrove street from the southeast to the southwest corner; that there was a wagon and team of horses standing about six feet south of Pleasant street and next to the east curb, the horses facing northward; that in attempting to cross she stepped from the pavement into the street and passed in front of these two horses; that she then stopped and looked north and south on Musgrove street; that a wagon was coming north on the car track; that she waited for this to pass by and again looked north and south; that she saw no vehicles approaching and proceeded to cross Musgrove street; that an automobile operated by Charles Deily, running from the south at a high rate of speed, struck her as she stepped from in front of the standing horses and threw her almost the entire width of Pleasant street. Several witnesses testified that the automobile was going at an excessive speed, that no warning was sounded as it approached Pleasant street, and that the car ran about 150 feet after striking Mrs. Kurtz before the chauffeur brought it to a stop. Under the circumstances, the issue of contributory negligence was for the jury.

There was no direct evidence that the automobile was the property of the defendant or that the chauffeur was in his employ at the time of the accident; but there were circumstances from which both of these facts might have been inferred. It was admitted that the car in question was purchased with the defendant's money and paid for by his individual check and that he at one time owned the Sedgwick garage at which the automobile was stored as well as...