Lettieri v. Blaisden

• Decision Date: 15 April 1931
• Docket Number: 39-1931
• Citation: 101 Pa.Super. 423
• Parties: Lettieri, Appellant, v. Blaisden
• Court: Pennsylvania Superior Court

101 Pa.Super. 423

Lettieri, Appellant, v. Blaisden

No. 39-1931

Superior Court of Pennsylvania

April 15, 1931

Argued March 2, 1931.

Appeal by plaintiff from judgment of C. P., Lackawanna County-1929 No. 329, in the case of George Lettieri, by his next friend E. M. Lettieri, v. R. G. Blaisden.

Trespass to recover for personal injuries. Before Newcomb, P. J.

Motion for compulsory nonsuit.

The facts are stated in the opinion of the Superior Court.

The court entered a compulsory nonsuit which it subsequently refused to strike off. Plaintiff appealed.

Error assigned, among others, was refusal to remove nonsuit.

A. F Vosburg, and with him A. A. Vosburg, for appellant.

O. B Partridge, for appellee.

Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Baldrige and Drew, JJ.

OPINION

Drew, J.

The plaintiff brought this suit to recover damages for personal injuries. At the close of his case the court entered a compulsory non-suit which it subsequently declined to remove; hence this appeal.

The plaintiff was riding as an invitee on the left running board of an automobile. The car was filled and plaintiff and three young men were standing on the running boards, two on each side of the car. At the intersection of Wheeler Avenue and Myrtle Street, in the city of Scranton, the car was run into in a right angle collision by a car driven by defendant. The plaintiff sustained injuries to one foot and leg. No one else was hurt, nor was either car damaged.

The single question in the case is whether the judgment of non-suit was properly entered. If the act of the plaintiff in riding on the running board of the car contributed in any degree to the production of his injury, he was guilty of negligence and cannot recover. If it did not, it is not to be considered: Creed v. P.R. R. Co., 86 Pa. 139, 145; Gould v. McKenna, 86 Pa. 297, 303.

">In Schomaker v. Havey, 291 Pa. 30, 139 A. 495, it was held to be contributory negligence as a matter of law to stand on the running board of a moving automobile. Following this case, it was held, in Zavodnick v. Rose & Son, 297 Pa. 86, 146 A. 455, to be negligence per se to ride on the flat platform of an open truck. But in each of these cases suit was brought by the passenger against the owner of the car or truck on which he was riding, whereas in the present case the action is brought by the passenger against the driver and owner of another car whose negligence is alleged to have caused plaintiff's injury. It is an established principle of law in this state that where, as in the present case, a third party is defendant, the rule for contributory negligence as it exists between passenger and carrier, is relaxed to some extent, so that in a situation where plaintiff's position at the time of injury could be declared an unsafe one as related to his carrier, it might nevertheless be considered safe as to third parties, the exercise of due care on whose part is in no degree lessened by plaintiff's position: Little v. Telegraph Co., 213 Pa. 229, 62 A. 848; McClung v. Pa. Taximeter Cab Co., 252 Pa. 478, 97 A. 694; McCaffrey v. Lukens, 67 Pa.Super. 231; Hull v. Bowers, 273 Pa. 429, 117 A. 189; Robinson v. American Ice Co., 292 Pa. 366, 141 A. 244. In these cases it was held that the question of plaintiff's negligence must go to the jury.

This principle was recognized...