Leslie v. Catanzaro

• Decision Date: 03 January 1922
• Docket Number: 97
• Citation: 116 A. 504,272 Pa. 419
• Parties: Leslie v. Catanzaro, Appellant
• Court: Pennsylvania Supreme Court

116 A. 504

272 Pa. 419

Leslie v. Catanzaro, Appellant

No. 97

Supreme Court of Pennsylvania

January 3, 1922

Argued October 24, 1921

Appeal, No. 97, Oct. T., 1921, by defendant, from judgment of C.P. Allegheny Co., Jan. T., 1917, No. 2059, on verdict for plaintiff, in case of Effie Leslie, a minor, by her father and next friend, Levi Leslie, and Levi Leslie in his own right, v. Samuel Catanzaro. Reversed.

Trespass for personal injuries. Before SHAFER, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff, Effie Leslie, for $3,500 and for defendant as to Levi Leslie: see 68 Pitts. L.J. 28; 11 Municipal L.R. 179. Defendant appealed.

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

The judgment is reversed, and is here entered for defendant.

John J Kennedy, of Griffith & Kennedy, with him J. Roy Dickie, for appellant. -- Defendant was not chargeable with negligence Eastburn v. U.S. Express Co., 225 Pa. 33; Hyatt v. Johnston, 91 Pa. 196; Phillips v. Ry. Co., 190 Pa. 222.

Ralph P. Tannehill, with him Rody P. & Meredith R. Marshall, for appellee. -- That it may be negligence to drive upon the left or wrong side of a street was decided in the case of Yeager v. Gately, 262 Pa. 466; see also Walleigh v. Bean, 248 Pa. 339.

It is not negligence per se to coast on a street which is not put to much public use, when not expressly prohibited by ordinance: Feldman v. Riccordino, 58 Pa.Super. 114.

Before MOSCHZISKER, C.J., FRAZER, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Plaintiff brought an action to recover damages for injuries sustained in a collision between the sled on which she was coasting and the automobile of defendant. Her statement of claim averred negligence in the running of the car without lights, and at an excessive speed, and charged, as well, careless operation of the motor. As to the first two complaints, no evidence was offered, and, if the verdict of the jury in favor of the plaintiff is to be upheld, it must be justified by the testimony submitted, and the inferences to be drawn therefrom, that the defendant failed to use due care in guiding his automobile.

Heberton Avenue, in the City of Pittsburgh, approaches Stanton Avenue from the north at rightangles and at a steep grade. From the latter, Meadow Street departs not in a direct line with Heberton, but from the southern side diagonally to the southeast. A clear view across Stanton and down Meadow Street, or from this roadway up Heberton, is impossible. Vision was specially interfered with at the time of the accident because of the occupation of practically one-half of Meadow Street, at a point about fifteen feet distant from Stanton, by a pile of building materials and a contractor's shanty, leaving not more than a 15-foot clearance for one approaching from the east.

Before coming to the Heberton Avenue hill on the night in question, Miss Leslie, with her companions, had been coasting upon a road to the west. When the accident occurred, two men were stretched out on the sled; she was kneeling on the rear, reaching over them, and holding the sides with her hands. They descended the grade at a rapid rate, crossed Stanton, and entered Meadow Street. At the same time, the defendant ascended the latter highway, on the right-hand side, until he reached the obstacle near the corner. The car which he was driving was equipped with lights; there were chains on the rear wheels and the brakes were in proper condition, as is shown by the stopping of the automobile practically within its own length. As he came toward Stanton Avenue his horn was blown. When he rounded the obstruction there was the first opportunity to observe the rapidly approaching sled which, at the moment, was distant from 15 to 25 feet, and, in the emergency, he turned his car to the left. It had almost reached the west curb when the coasting party came in contact with the front right-hand mud guard, resulting in injury to the plaintiff. The machine mounted the sidewalk to the driver's left, and, when it ceased motion, the front was about four feet beyond the curb.

The only proof of negligence, on the part of defendant, rests upon an inference drawn from the location of the car at the moment of collision. In considering this, it is to be kept in mind that the position of the automobile was made necessary by the condition of the highway, the width of which for traveling purposes was reduced at the point in question by half, and the sudden turn, then made, to the west curb, was clearly for the purpose of avoiding the accident. The sled could not have been seen until the automobile was moved, around the obstruction, from the right-hand side of the street, on which defendant was properly traveling. The distance between the coasting party and defendant's car was then not in excess of 25 feet, and the time elapsing until the impact, basing the calculation on the undisputed rate at which the motor car was moving, could not have been greater than one or two seconds. The rapidly moving sled was from two to four feet from the west curb line, leaving clear not more than 10 or 12 feet in which the motor, coming around the pile of building material, could be straightened out, and headed again toward Stanton Avenue.

There was no clear evidence defendant was aware that coasters...