Majewski v. Lempka

• Decision Date: 23 March 1936
• Docket Number: 386,404,385,387,388,403
• Citation: 183 A. 777,321 Pa. 369
• Parties: Majewski et al. v. Lempka et al., Appellants
• Court: Pennsylvania Supreme Court

183 A. 777

321 Pa. 369

Majewski et al. v. Lempka et al., Appellants

Nos. 385, 386, 387, 388, 403, 404

Supreme Court of Pennsylvania

March 23, 1936

Argued January 9, 1936

Appeals, Nos. 385, 386, 387, 388, 403 and 404, Jan. T., 1935 by defendants, from judgment of C.P. No. 1, Phila. Co., Dec T., 1933, No. 3812, in case of Frances Majewski, by her parents, and next friends, Wincenty Majewski and Katarzyna Majewski, and Wincenty Majewski and Katarzyna Majewski, in their own right, v. Nellie Lempka, defendant, and Peter J. Muschal and Rose Muschal, additional defendants. Judgment affirmed.

Trespass. Before ALESSANDRONI, J.

The opinion of the Supreme Court states the facts.

Verdicts, for minor plaintiff in sum of $20,000, reduced to $10,000, and for parent plaintiff in sum of $415.35, against original defendant and additional defendants, and judgments thereon. Defendant and original defendants appealed.

Error assigned, among others, was judgment.

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

C. Donald Swartz, of Swartz, Campbell & Henry, with him Herbert A. Barton, for appellants, Nos. 385, 386, 387 and 388.

Louis Waber, for appellant, Nos. 403 and 404.

Robert M. Bernstein, with him Milford J. Meyer, for appellee.

Before SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE MAXEY:

This action of trespass arose out of an accident on the Roosevelt Boulevard, between Welsh Road and Grant Avenue, in the City of Philadelphia. At this point the boulevard runs generally east and west and for a certain distance there are two driveways, one for eastbound traffic and one for westbound traffic. Each driveway is thirty-four feet wide. Between them is a grass plot twenty-eight feet in width. Near the place of the collision this plot narrows until it ends in an arc of thirteen feet. From there eastward there is a single road forty feet wide. The accident took place at approximately 2 p.m. on September 17, 1933. The day was clear. The minor plaintiff, a young woman of twenty years, was a guest in a car that was proceeding in a westerly direction, approaching the arc where the highway divided into the two lanes of travel. The original defendant had been driving easterly in the southern lane of travel and had reached the end of the grass plot; she was in the act of executing a "U" turn around the arc of the "island" when the two cars collided. The present action was brought by the minor through her parents as next friends and by the parents in their own behalf to recover damages for personal injuries to the minor. Alleging that the driver of the car in which the minor plaintiff was riding, and also that the owner of the car, his mother, who was a passenger at the time of the accident, were responsible for the accident, the original defendant issued writs of scire facias to summon both as additional defendants. The jury returned a verdict of $20,000, for the minor and $415.35 for her mother, the father having died during the interim between the commencement of the suit and the time of trial. The verdict was against all the defendants. Subsequently, plaintiffs filed a remittitur of all sums in excess of $10,000, and judgment was entered accordingly. Defendants have taken the present appeals, assigning as error, inter alia, the refusal of their respective motions for judgment n.o.v.

The testimony is conflicting. As the record stands our review must be based upon the aspects of the testimony most favorable to plaintiffs. We cannot escape the conclusion that the jury was entitled to find that both drivers were negligent; that the negligence of each contributed to the accident; and that if either had exercised due care the collision would have been averted.

The testimony of plaintiffs and that of the additional defendants is to the effect that the original defendant attempted an abrupt "U" turn around the end of the grass plot while she was going twenty miles an hour and when the other car was but twenty-five feet away and approaching at a speed of thirty miles an hour; that the right front of the original defendant's car struck the left rear of the additional defendants' car with such force that the latter car was thrown completely off the road and overturned. The original defendant's view was unobstructed. The jury properly found that heedless of consequences she went forward into a situation obviously dangerous. Under the circumstances, her negligence was a legitimate inference: Romanowski v. Morganstein, 111 Pa.Super. 443, 446, 170 A. 379; cf. Alperdt v. Paige, 292 Pa. 1, 140 A. 555; Weinberg v. Pavitt, 304 Pa. 312, 155 A. 867; Peters v. Atlas Powder Co., 313 Pa. 115, 169 A. 160; Frank v. Pleet, 87 Pa.Super. 494.

We are also convinced of the propriety of the jury's finding with respect to the liability of the additional defendants. The original defendant testified that when she looked to the east prior to making her turn, the additional defendants' car was at least 250 feet away; that she proceeded slowly and cautiously, twice stopping to look for approaching vehicles; that she had completed her turn, having covered practically the entire width of the westbound lane; that in so doing she traveled thirty-five feet from the end of the grass plot and that at the moment of the collision her car had been "straightened out" and was headed westerly; that the additional defendants' car suddenly came up between her car and the curb, at which time "it apparently struck something, possibly the curb," causing its left rear to be thrown back into the right front of her car. The additional defendant driver himself testified that he saw the original defendant about to turn when he was twenty-five feet away, that he could have stopped within fifteen feet, but that he did not apply his brakes. This driver should have been cognizant of the imminence of a collision and should have taken appropriate action to avoid it. His failure to do so justified the jury in imputing negligence to him: Mathiasen v. Brennan, 318 Pa. 577, 179 A. 438.

It is contended by the additional defendants that the "incontrovertible physical facts" negative any finding of negligence on their part. This contention is founded on the assumption that the additional defendants' testimony as to how the...