Moquin v. Mervine

• Decision Date: 13 May 1929
• Docket Number: 81
• Citation: 146 A. 443,297 Pa. 79
• Parties: Moquin v. Mervine, Appellant
• Court: Pennsylvania Supreme Court

146 A. 443

297 Pa. 79

Moquin v. Mervine, Appellant

No. 81

Supreme Court of Pennsylvania

May 13, 1929

Argued April 15, 1929

Appeal, No. 81, Jan. T., 1929, by defendant, from judgment of C.P. Clinton Co., June T., 1927, No. 34, on verdict for plaintiff, in case of Maude A. Moquin v. Graydon D. Mervine. Affirmed.

Trespass for death of plaintiff's husband. Before HECK, P.J. specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $11,250. Defendant appealed.

Errors assigned were various rulings and instructions, quoting record.

The judgment is affirmed.

Harry S. Ambler, Jr., with him Frank R. Ambler and Geary & Gilson. -- The mere happening of an accident does not raise a presumption of negligence, much less tend to prove it Flanigan v. McLean, 267 Pa. 553; Leslie v. Catanzaro, 272 Pa. 419; Ferrell v. Solski, 278 Pa. 565, 568; Bloom v. Bailey, 292 Pa. 348.

Speed is important only when it is the proximate cause of an accident: Eastburn v. Express Co., 225 Pa. 33; Flanigan v. McLean, 267 Pa. 553; Bloom v. Bailey, 292 Pa. 348.

The accident complained of by appellee comes within the category of unavoidable accidents.

A defendant cannot be held liable for the results of such an accident: Brown v. Boom Co., 109 Pa. 57; Wall v. Lit, 195 Pa. 375; Bradley v. Ry., 238 Pa. 315.

There are three of the so-called "guest-passenger cases," in which the situation was really one of unavoidable accident, though the opinions do not so state specifically: Ferrell v. Solski, 278 Pa. 565; Simpson v. Jones, 284 Pa. 596; Wagenbauer v. Schwin, 285 Pa. 128.

When one is confronted by a sudden and unexpected danger, and has but a moment in which to act, he cannot be held liable for negligence on the ground that he failed to see and follow what may appear on reflection to have been the wiser course: Phillips v. Ry., 190 Pa. 222; Ackerman v. Traction Co., 205 Pa. 477; Wingert v. Ry., 262 Pa. 21.

According to appellee's testimony, the average rate of speed at which the party traveled on the way home was much in excess of the lawful rate of 30 miles an hour prescribed by statute; and as the appellant slowed down when he struck pockets of fog, or came to dangerous curves, his speed at other places must have exceeded that illegal average. And as appellee and her husband not only did not protest, but aided and encouraged the maintenance of that speed, they were both negligent for a guest-passenger who permits his host-driver to violate a fixed rule of law, -- e.g., by driving at an illegal or reckless rate of speed, -- without protest, is guilty of contributory negligence: Hardie v. Barrett, 257 Pa. 42; Hill v. Rapid Transit Co., 271 Pa. 232; Wegenbauer v. Schwinn, 285 Pa. 128; Morningstar v. R.R., 290 Pa. 14.

Henry Hipple, with him M. E. Haggerty, for appellee.

Appellant, particularly since he was driving at night, was in duty bound to have his car under such control as to be able to stop, or turn it away when objects intercepting his passage came within his vision, or where he knew of the presence of obstructions: Serfas v. R.R., 270 Pa. 306; McGrath v. R.R., 71 Pa.Super. 1; Lorah v. Rinehart, 243 Pa. 231.

The physical effect of a collision can be shown in order to determine whether defendant was operating an automobile recklessly or at an undue rate of speed: McFetters v. Lee, 274 Pa. 83; Schoepp v. Gerety, 263 Pa. 538; Petrosky v. Danowitz, 86 Pa.Super. 22; Lorah v. Rinehart, 243 Pa. 231; Edwards v. Mott, 77 Pa.Super. 140; Reaney v. Jones, 75 Pa.Super. 355.

Appellant's theory of an unavoidable accident is untenable: Ferrell v. Solski, 278 Pa. 565; Cody v. Venzie, 263 Pa. 541; Wolf v. Sweeney, 270 Pa. 97.

Under the peculiar circumstances of this case the finding that the death of Moquin was a natural cause and proximate result of the wound did not depend entirely on expert or medical testimony, but could have been found by the jury from the circumstances of the death and injury: Davis v. Davis, 80 Pa.Super. 343; Yodis v. Coal & Iron Co., 269 Pa. 586; Zukowsky v. Coal & Iron Co., 270 Pa. 118; Zelazny v. Mining Co., 275 Pa. 397; Jones v. Coal & Iron Co., 285 Pa. 317.

All that a passenger can do is to protest or warn the driver: Hardie v. Barrett, 257 Pa. 42; Davis v. Ice Co., 285 Pa. 177; Vocca v. R.R., 259 Pa. 42; Schlossstein v. Bernstein, 293 Pa. 245; Alperdt v. Paige, 292 Pa. 1.

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

OPINION

MR. JUSTICE SCHAFFER:

Defendant, who appeals from a judgment on a verdict awarded against him for damages caused to plaintiff by the death of her husband, urges upon us that the recovery should be set aside.

Many questions are presented in appellant's most elaborate brief. We think it not requisite to discuss them in detail because the real case is of simple statement.

Defendant and his wife and four guests, plaintiff and her deceased husband, and a Mr. and Mrs. Wright, were returning from Pittsburgh to Lock Haven on the night of January 10, 1927. They were riding in defendant's automobile at his invitation. He was driving the car. About 11:30 o'clock, in rounding a sharp curve, the automobile left the road and crashed into a frame shed eight or ten feet distant from the improved part of the highway, with the result that most of those in the car were more or less injured, plaintiff's husband by a cut in his forehead three or four inches long, which became infected the next day with streptococci, from which death resulted thirty-six hours after the collision.

Defendant insists that he was driving with due care at the time of the collision, at not over fifteen miles an hour. The photograph of the automobile attached to the record, exhibiting as it does a demolished condition, would indicate great force applied. It is undisputed that the shed, which 20X30 feet and weighed seven tons, was knocked by the impact of the car eighteen inches off its foundation. It is difficult to understand how what happened to the car and the building could have been brought about by a speed as low as appellant mentions. The car was a closed sedan and those in it with the exception of appellant, who was at the wheel, were thrown out of it by the force of the blow. "With reference to the speed at which the truck was traveling the jury might properly conclude, from . . . the force and effect of the collision, that it was moving faster than the defendant's driver indicated by his testimony": McFeeters v. Lee, 274 Pa. 83, 86.

Plaintiff, who was familiar with the speed of automobiles, having driven one for ten years, testified that as they approached the curve, defendant was driving at the rate of forty-five miles and hour, that there were warning signs indicating that it was a dangerous curve, and that her husband, who was seated with her on the rear seat, as they approached the curve, said to defendant, "You better slow up, we're coming to the curve." She likewise gave warning. Defendant admitted full knowledge of the curve, having driven over the road many times, and himself testified that on the way out to Pittsburgh one of the party had spoken of it as the "meanest" curve on the road.

Under these circumstances, considering the dangerous character of the road, the speed at which the car was moving as testified to by plaintiff, and as indicated by the circumstance that instead of taking the curve, it left the improved part of the road and proceeded in a straight course to the shed, and the result of its impact therewith, we are of opinion that it was for the jury to say whether defendant was negligently operating the automobile: McFeeters v. Lee, 274 Pa. 83. He was bound to so operate his car as that at all times he had it under proper control: Lorah v. Rinehart, ...