Polonofsky v. Dobrosky
| Decision Date | 27 November 1933 |
| Docket Number | 203 |
| Citation | 169 A. 93,313 Pa. 73 |
| Parties | Polonofsky et al., Appellants, v. Dobrosky |
| Court | Pennsylvania Supreme Court |
Argued September 28, 1933
Appeal, No. 203, March T., 1933, by plaintiffs, from judgment of C.P. Jefferson Co., Aug. T., 1932, No. 405, on record, in case of Marie Polonofsky and Joe Polonofsky, her husband, v Margaret Dobrosky. Judgment affirmed.
Trespass for personal injuries. Before RIMER, P.J., specially presiding.
The opinion of the Supreme Court states the facts.
Disagreement by jury. Judgment for defendant on record. Plaintiffs appealed.
Error assigned was judgment for defendant, quoting record.
Judgment affirmed.
Edward Friedman, with him Charles J. Margiotti and John E. Evans, Sr., for appellants.
Raymond E. Brown, with him Matthew A. Crawford, for appellee.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
At the trial of this action of trespass to recover damages for injuries resulting from an automobile accident, the jury were unable to agree and were dismissed. The court thereupon granted defendant's motion for judgment upon the whole record. Plaintiffs appeal.
The wife-plaintiff was a guest in the automobile driven by defendant and was injured when the car in which she was riding collided practically head-on with an automobile driven by one Melinsky. The accident occurred May 17, 1932, shortly after 8 p.m., on a dry, clear evening. It was dusk and the lights of the machines were burning. Defendant's car was ascending a medium grade on a straight stretch of concrete highway, sixteen to eighteen feet in width, near the village of Plumville in Indiana County. Defendant was traveling on the right-hand side of the road at a speed between 45 and 50 miles an hour. The Melinsky car came over the crest of the hill toward defendant with its left wheels over the marked center line of the road, and was rapidly overtaking another car (hereafter called the Johns car) which was proceeding in the same direction. The testimony indicates that the accident occurred either through Melinsky's ill-timed attempt to pass the car ahead of him or by his failure to return to the proper side of the road in time to permit defendant to pass by. Melinsky testified he had been drinking prior to this occurrence and was driving a stolen car, for which offense he was later convicted and sentenced to the penitentiary.
Defendant a sister of the wife-plaintiff, who was apparently not a witness unfriendly to her, testified she first saw the Melinsky car when about 300 feet distant, and realized it was on her side of the road, but continued in her path in the expectation Melinsky would return to the right and afford her sufficient clearance to pass. The evidence indicates the berm at the side of the road was of ample width to have permitted defendant to avoid a collision by turning off the concrete on to the berm. We are unable to agree with appellants' contention that defendant's failure to leave the concrete roadway was sufficient evidence of negligence to...
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