Petrie v. E.A. Myers Co.

• Decision Date: 31 December 1920
• Docket Number: 153
• Citation: 112 A. 240,269 Pa. 134
• Parties: Petrie v. E.A. Myers Co., Appellant
• Court: Pennsylvania Supreme Court

112 A. 240

269 Pa. 134

Petrie v. E.A. Myers Co., Appellant

No. 153

Supreme Court of Pennsylvania

December 31, 1920

Argued October 15, 1920

Appeal, No. 153, Oct. T., 1920, by defendant, from judgment of C.P. Allegheny Co., July T., 1918, No. 347, on verdict for plaintiff, in case of Anna Petrie v. E.A. Myers Co. Affirmed.

Trespass for death of plaintiff's husband. Before REID, J.

At the trial the jury returned a verdict for plaintiff for $5,000. On a rule for a new trial and motion for judgment for defendant n.o.v., REID, J., refused both, in the following opinion:

At the time of the occurrence of the accident, decedent, who, among other activities, was a dealer in cattle, was leading a cow by a rope, down Obie avenue in Chartiers Township, Allegheny County.

Defendant at the time was engaged in hauling coal from a mine in that vicinity, using for the purpose two automobile trucks. One of these, in charge of an employee of defendant, was descending the steep grade of Obie avenue, heavily laden. The driver of this truck, who was keeping to the right of the road, saw decedent ahead of him walking along the extreme right side of the roadway, also bound down the hill and having his back to the descending car. Decedent was within twelve inches of the outer edge of the paved roadway, the cow he was leading by a short rope, was moving on the unpaved, wet, and muddy portion of the highway close to decedent's right. Although defendant's driver sounded his horn and, as he contends, also shouted, decedent kept to the edge of the paved road and did not look around.

As the downbound truck was approaching decedent, the defendant's empty upbound truck, enroute to the mine, was in sight of both the decedent and the driver of the downbound truck. The driver of the upbound truck (we are justified in assuming, though he could not be found to testify) also had in view the man, cow, and downbound truck.

Although this situation was thus observable to both drivers, they nevertheless continued in motion, and their trucks passed the spot then occupied by decedent, at the same moment, thereby occupying the entire paved portion of the roadway, and the front right-hand wheel of the downbound truck struck him and inflicted injuries from which he died.

Defendant's downbound truck, although the brakes were applied and the movement retarded somewhat, beginning one hundred yards away, continued to advance all the time, anticipating that decedent would step out into the mud and give the whole paved roadway to the trucks. There was no attempt to stop the downbound car until within a few feet of decedent, and then it could not be stopped.

The evidence of Lotes, the driver of the loaded truck, indicates that, as he saw the upbound car advancing at a rate not to exceed eight miles an hour and his car was moving at from six to eight miles an hour, with the emergency brake on, he could have swung to the left across the path of the upbound car, had he chosen to do so and thus avoided striking the man. But, as already stated, he kept blowing the klaxon, shouting, and expecting to have the way clear, and kept going until, when the trucks passed, there was but one inch between them, and the accident happened.

The chief line of defense was the contributory negligence of decedent.

The reasons assigned for a new trial are (1) the verdict was against the law; (2) against the evidence; (3) error of the court in refusing defendant's first point; (4) in refusing defendant's second point; (5) in not unqualifiedly affirming defendant's third point; and (6) in refusing defendant's fourth point.

If the verdict was against the law, it is because the defendant was entitled to binding instructions. As to the verdict's being against either the evidence or the weight of the evidence, we are convinced that it was neither, but was fully warranted by the facts proven.

Being of opinion that the whole case was for the jury, we refused defendant's first point (covered by the third of foregoing reasons). This point was for binding instructions. Evidence warranting submission to the jury was adduced, and therefore the point was necessarily refused.

The fourth reason refers to the refusal of defendant's second point, which was as follows: "Fred Petrie . . . having elected to traverse . . . a public highway longitudingly is bound to be most vigilant and to exercise a high degree of care."

This was refused as requiring a greater degree of care than the law requires in the user of a highway, especially in country districts, as a place for traveling on foot. It seems to us that,...