Roberts v. Freihofer Baking Co.

• Decision Date: 11 May 1925
• Docket Number: 298
• Citation: 283 Pa. 573,129 A. 574
• Parties: Roberts, Admr., v. Freihofer Baking Co., Appellant
• Court: Pennsylvania Supreme Court

129 A. 574

283 Pa. 573

Roberts, Admr., v. Freihofer Baking Co., Appellant

No. 298

Supreme Court of Pennsylvania

May 11, 1925

Argued April 23, 1925

Appeal, No. 298, Jan. T., 1925, by defendant, from judgment of C.P. No. 2, Phila. Co., Sept. T., 1923, No. 5757, on verdict for plaintiff, in case of Jessie M. Roberts administratrix ad prosequendum of estate of Thomas Leroy Roberts, deceased, v. Freihofer Baking Co. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict and judgment for $15,000. Defendant appealed.

Error assigned was refusal of binding instructions for defendant quoting record.

The assignment of error is overruled and the judgment is affirmed.

Edgar W. Lank, of Smithers, Lank & Horan, for appellant. -- There was not sufficient evidence to warrant a finding that defendant was guilty of "wrongful act, neglect or default" under the New Jersey statute or as laid in the declaration: Zenzil v. R.R., 257 Pa. 473; Goater v. Klotz, 279 Pa. 392; Warruna v. Dick, 261 Pa. 602; Flanigan v. McLean, 267 Pa. 553; King v. Brillhart, 271 Pa. 301; Erbe v. R.R., 256 Pa. 567; Express Co. v. Wile, 64 Pa. 201; Bank v. Wirebach, 106 Pa. 37; Martin v. Niles-Bemet Pond Co., 214 Pa. 616; Wagner v. Trans. Co., 252 Pa. 354; Bew v. Daley, 260 Pa. 418; Ferrell v. Solski, 278 Pa. 565.

Decedent was guilty of contributory negligence by uncontradicted, affirmative testimony that overcame the evidential presumption arising from his death: Zotter v. R.R., 280 Pa. 14, 21; Bernstein v. R.R., 252 Pa. 581; Shepherd v. Phila., 279 Pa. 333; Greer v. Tyson, 185 Pa. 356; Geiger v. Garrett, 270 Pa. 192; Walker v. Trans. Co., 274 Pa. 121.

W. H. Hepburn, Jr., for appellee.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

South Broadway in Camden, New Jersey, is a paved street, with a double track street railway in the center. About midnight, on August 29, 1923, a southbound autobus therein broke its rear axle and Thomas L. Roberts, plaintiff's decedent, who was employed as a mechanic in a neighboring service station, was engaged to replace the broken axle with a new one. The bus stood facing the south with the front inclined toward the west curb and with the left rear wheel standing on the first railway track, as the street cars were not then running. The work in hand was a short job, usually done on the street; as Roberts was undertaking to do it there, working on the right-hand side of the car, he was killed by one of defendant's auto delivery trucks. This suit, brought to recover for his death, resulted in a verdict and judgment for plaintiff, and defendant has appealed.

We find no reversible error. There was some conflict in the evidence but, as this is a motion for judgment n.o.v., we must assume in support of the verdict every fact and inference properly deducible from the evidence: Mellon et ux. v. Lehigh Valley R.R., 282 Pa. 39. So doing, it appears defendant's truck, when going south in Broadway at the rate of forty miles an hour, grazed the bus and killed Roberts while at his work, then ran about three hundred feet. The impact caused Roberts' instant death and drove his body under the bus so that it was removed with great difficulty. The place was well lighted by near-by electric lights, in addition to three red lights at the rear of the bus where Roberts was at work. Approaching, as the truck did from the north, the bus was visible for five hundred feet; the red lights and Roberts were also in plain sight of the truck driver in ample time to have enabled him to avoid the accident, and there was an open space between the bus and the east curb of sufficient width for two automobiles to pass side by side and through which he might have driven in safety. The conclusion that the driver was negligent is unavoidable; it even follows from his own testimony, for he says he was going from twenty to twenty-five miles an hour through darkness so intense that the lights would not penetrate it. In answer to questions by the trial judge, he said: "Q. Do you think you were going about 20 to 25 miles an hour? A. Yes, sir. Q. On a night when your lights wouldn't penetrate at all? A. That's the story." True, his testimony as to the intense darkness was at variance with all the other evidence in the case, although it had been raining earlier in the night.

The question of contributory negligence, while debatable, was for the jury. Roberts was doing his work in the usual manner well protected by red lights and street lights, and it cannot be declared as matter of law that he was bound to anticipate that an autotruck would pass so near as to graze the bus or strike him even though some part of his body was outside the...