Schulz v. Reading Transportation Co.

• Decision Date: 27 May 1946
• Docket Number: 3878
• Citation: 47 A.2d 213,354 Pa. 373
• Parties: Schulz, Excrx., v. Reading Transportation Company, Appellant
• Court: Pennsylvania Supreme Court

47 A.2d 213

354 Pa. 373

Schulz, Excrx., v. Reading Transportation Company, Appellant

No. 3878

Supreme Court of Pennsylvania

May 27, 1946

Argued April 9, 1946

Appeal, No. 110, Jan. T., 1946, from judgment of C.P. No. 4 Phila. Co., Dec. T., 1943, No. 2395, in case of Eleanor Schulz, Excrx., Estate of Katherine Rosenkranz, deceased, v Reading Transportation Company. Judgment affirmed.

Trespass for personal injuries. Before BROWN, J.

Verdict and judgment for plaintiff in sum of $5,000. Defendant appealed.

The testimony in this case prevented an issue of fact for the jury. The court's refusal to enter judgment for the defendant n.o.v. was proper. The judgment is affirmed.

Thomas E. Comber, Jr., with with him Pepper, Bodine &amp Stokes, for appellant.

William F. Quinlan, with him Victor Frey, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.

OPINION

MR. CHIEF JUSTICE MAXEY

This is an appeal from the refusal of the court below to enter judgment for the defendant n.o.v. in an action of trespass.

On January 4, 1944, Katherine Rosenkranz was fatally injured when defendant's motor bus on which she was a passenger for hire went out of control on Huntington Pike between Southampton in Montgomery County and Fox Chase in Philaderlphia; then traveled a distance of approximately 150 feet, turned completely around and broke a telegraph pole, about ten inches in diameter, located 13 feet from the left edge of the concrete.

After the action had been brought in behalf of the victim, she died as a result of her injuries. The action was then continued in the name of Eleanor Schulz as Executrix. After a trial, a verdict was returned in favor of the plaintiff in the amount of $5,000.00.

Appellant contends that no case of negligence was made out. The facts are these: The motor bus was proceeding in a southerly direction on the Pike at 9 A.M. The operator of the bus described the road as being "very slippery, icy and sleety; it was partly raining and snowing and slushy". There were no chains on the tires. The Pike is intersected by Susquehanna Road at a point where to one driving southerly, the Pike curves "very sharply to the left." Approaching Susquehanna Road, the Pike for a distance of 244 feet north of Susquehanna Road drops in a 2 1/2% grade; from Susquehanna Road south the grade increases to one of 6 1/2% for approximately 156 feet. An engineer described this latter grade as "a heavy grade, especially around the curve". The bus driver testified that as he approached Susquehanna Road the bus was proceeding at a rate of between 15 and 20 miles per hour, and that as he was drawing near to Susquehanna Road, he took his foot off the accelerator and as he came around Susquehanna Road, he "suddenly went into a skid". He was asked: "Just as you crossed Susquehanna Road how fast were you going?" He answered: "... Not more than five miles an hour, because I expected a passenger, and I had started to pull up a bit." His testimony at the first trial of this case was then read to him. There he had testified: "The road was icy and slippery. I was traveling between 16 and 20 miles per hour, and as I hit Susquehanna Road at the curve, the bus went into a skid." He had driven over this route for more than six months. The trip in which the accident occurred was his second trip that morning over that road. He testified that he was not "on schedule" on the second trip and he "thought" he was "a little late".

The court below in refusing to enter judgment for the defendant n.o.v. correctly took the view that plaintiff's evidence made out a prima facie case of negligence because it showed "in addition to the skidding of the bus, the heavy grade of the hill, the sharp curve of the highway, the icy and slippery condition of that road and others in the locality, the bus being driven at approximately fifteen miles per hour, the course and length of the skidding, and the effect of the force of the collision upon both the telegraph pole and the bus." These facts justified the jury's conclusion that the operator of the bus was operating the bus at a rate of speed which under the circumstances was excessive and negligent, and that under the weather and road conditions then confronting him he was not proceeding with due caution. This was not a case where a car or bus suddenly encounters an unforeseen patch of ice on the highway and then skids. The operator of this bus had traveled over this part of the highway only two hours previously and he knew exactly what was ahead of him. The general weather conditions also were such as to put him on notice that he should proceed down grade with caution, at a slow rate of speed. This he did not do. The momentum of the bus was such that its skidding on this hill was to be expected. It was the driver's duty to reduce that momentum. This duty he breached and it is a legitimate inference that the accident resulted from that breach.

In Griffith v. V. A. Simrell & Son, 304 Pa. 165; 155 A. 299, this court declared that a driver of a motor vehicle is "bound to take into account the slippery condition of the street and to reduce his speed to the point where he [can] control the movements of the car". In Cook et al. v. Miller Transport Co., 319 Pa. 85 at 88; 179 A. 429, we held that a driver of a vehicle must "exercise the due and necessary care demanded by that [wet and slippery] condition of the street" and we said "In Prinz v. Lucas, 210 Pa. 620; 60 A. 309; and McGettingan v. Quaker City Automobile Co., 48 Pa.Super. 602, it is held that drivers of automobiles are chargeable with knowledge that their cars may skid or slue, and must guard thereagainst...."

In Laessig v. Cerro, 149 Pa.Super. 155 at 158, the Superior Court said, quoting from the language of the court below in that case: "In the instant case we have more than a mere skidding proved. We also have proof and an agreement that the icy condition which caused the skidding of defendant's car was not an exceptional or isolated condition, but on the contrary, it was a condition which existed over the entire highway in the entire vicinity of the accident. In other words, the skidding in this case might reasonably have been anticipated and it was for the jury to determine, under proper instructions from the court, whether, under the circumstances, the defendant was guilty of negligence."

The case of Master, Admrx v. Goldstein's F. & P., 344 Pa. 1; 23 A. 443, is distinguishable from the instant case because in that case, as was pointed out in this court's opinion, "At the time of the accident there was no ice anywhere on Lincoln Highway between Philadelphia and Lancaster except on the ascending hill going west from Devon; and that, although the surface of that hill was very slippery, the witnesses who had been using the road did not discover the thin coating of ice until they stepped onto the road. It also appeared that at 4:00 A.M. of the same day, only two hours before, there was no ice on Devon Hill."

In Louis De Antonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567, 569, the Supreme Court said: "It appeared that he [the driver of the truck] was entirely familiar with the road and with its general condition on the morning in question, knew the truck, its weight and that of its load, and its characteristics, and it was for the jury to determine whether the skidding was not reasonably to be anticipated and more effectively guarded against; whether the use of third rather than a lower gear, the rate of speed indicated by the circumstances and results, the failure to apply brakes until the collision was imminent, the driver's conduct in directing and confining his efforts to an attempt to get the front wheels in line with the rear by turning the former to the left, or any other element of the situation, constituted negligence in not preventing or restricting the skidding of the truck."

In Miles, Admr., v. Myers, 353 Pa. 316, this court said: "In the instant case the evidence shows that the tires on the defendant's car were not equipped with chains, although the highways were in an icy condition. Failure to equip the wheels of a car with chains is not negligence per se, but it is a fact which with other facts may support a finding of negligence."

The court below also correctly held that in a case...