Schomaker v. Havey
| Decision Date | 28 November 1927 |
| Docket Number | 139 |
| Citation | 139 A. 495,291 Pa. 30 |
| Parties | Schomaker, Appellant, v. Havey |
| Court | Pennsylvania Supreme Court |
Argued September 28, 1927
Appeal, No. 139, March T., 1927, by plaintiff, from order of C.P. Allegheny Co., Jan. T., 1926, No. 1022, refusing to take off nonsuit, in case of Helen M. Schomaker v. Richard B Havey. Affirmed.
Trespass for death of plaintiff's husband. Before DREW, J.
The opinion of the Supreme Court states the facts.
Nonsuit refusal to take off. Plaintiff appealed.
Error assigned was order quoting record.
The order of the court below is affirmed.
John J. McGrath, for appellant.
George Y. Meyer, for appellee.
Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.
In this action of trespass, Helen M. Schomaker, plaintiff, alleged that the negligence of defendant, Richard B. Havey, in operating his automobile, caused the death of her husband, Lambert Schomaker; the trial court, holding plaintiff's decedent guilty of contributory negligence, entered a nonsuit, which it subsequently declined to remove; hence this appeal.
On the night of October 18, 1925, while defendant was driving his coupe automobile along a road in Allegheny County, he was hailed by plaintiff's husband, and, at the latter's request, defendant agreed to give him a lift in his car. The coupe had one other occupant beside defendant, and the deceased elected to stand on the running board with his head, shoulders, arms, and part of his body inside the window on the side opposite the driver. As the car approached an intersecting road, defendant increased the speed of his car from between twenty and twenty-five miles to forty or forty-five miles an hour, and upon reaching the intersection, suddenly swerved his automobile to the left, then to the right, and upset. Schomaker was thrown to the ground, sustaining injuries which resulted in his death.
We have held, as a matter of law, that it is contributory negligence to stand on the platform of railroad trains (Rager v. Penna. R.R. Co., 229 Pa. 335, 338); also to stand on the running boards of street railway cars (Thane v. Scranton Traction Co., 191 Pa. 249, 252; Woodroffe v. Roxborough, etc., Ry. Co., 201 Pa. 521, 522; Burns v. Johnstown Pass. Ry. Co., 213 Pa. 143, 144; Harding v. Phila. R.T. Co., 217 Pa. 69, 70); and in D'Allesandro v. Bentivoglia, 285 Pa. 72, 73, we recently intimated that riding on the running board of a moving motor car constituted contributory negligence.
In Harding v. Phila. R..T Co., supra, at page 70, we said "It is . . . clear that one who takes a position of manifest and imminent danger assumes the risk of his position." Certainly, standing on the running board of a moving automobile is as dangerous as standing on a similar place on a street car, if not more so, and a person who...
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