Seburn v. Luzerne & Carbon County Motor Transit Co.

• Citation: 394 Pa. 577,148 A.2d 534
• Decision Date: 12 January 1959
• Docket Number: No. 369,No. 367,No. 371,No. 364,No. 368,No. 363,No. 370,No. 365,No. 366,363,364,365,366,367,368,369,371,370
• Parties: Helen SEBURN v. LUZERNE & CARBON COUNTY MOTOR TRANSIT COMPANY, Incorporated. Helen Seburn, Appellant in; Jess Seburn, Appellant in; Helen Chasar, Appellant in; Verna Paulshock, Appellant in; George Paulshock, Appellant in; Helen Mazurek Breznak, Appellant in; George Breznak, Appellant in; Helen Yanotchko, Appellant in; and Michael Yanotchko, Appellant in
• Court: United States State Supreme Court of Pennsylvania

Page 534

148 A.2d 534

394 Pa. 577

Helen SEBURN v. LUZERNE & CARBON COUNTY MOTOR TRANSIT COMPANY, Incorporated.

Helen Seburn, Appellant in No. 363;

Jess Seburn, Appellant in No. 364;

Helen Chasar, Appellant in No. 365;

Verna Paulshock, Appellant in No. 366;

George Paulshock, Appellant in No. 367;

Helen Mazurek Breznak, Appellant in No. 368;

George Breznak, Appellant in No. 369;

Helen Yanotchko, Appellant in No. 371;

and

Michael Yanotchko, Appellant in No. 370.

Supreme Court of Pennsylvania.

Jan. 12, 1959.

Petition for Reargument Dismissed March 5, 1959.

Louis G. Feldmann, James J. Boyle, Hazleton, for appellants.

William S. McLean, James, McLean, Silverblatt & Miner, Wilkes-Barre, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN and BOK, JJ.

BELL, Justice.

This is an appeal from a judgment of nonsuit.

A nonsuit can be granted only in a clear case. In considering the entry or removal of a compulsory nonsuit, it is hornbook law that 'plaintiffs must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor. Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377; Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382.' Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A.2d 77.

In the light of these familiar rules, the following facts may be taken as proved. On February 2, 1956, at 4:00 P.M., the defendant's bus, driven by its employee, Andrew Tarapchak, was proceeding easterly from Hazleton on Route 940. It was being driven at a speed of 20 miles an hour. Francis O'Donnell was driving his automobile easterly on Route 940. The plaintiffs were among the bus's thirty-one passengers. At a point three miles from Hazleton and just beyond the village of Harleigh, O'Donnell tried to pass the bus; when he was half-way in the middle of the bus or a little ahead of the bus, he saw a car approaching from the opposite direction. There was no evidence how far away the approaching car was, but O'Donnell had a clear vision of approximately 800 feet. O'Donnell then drove his car from the left hand lane into the right hand lane, intending to get ahead of the bus. O'Donnell's right front fender crashed into the left fender of the bus and became hooked at its fender and bumper. The two vehicles, thus hooked, veered to the right. After traveling about 20 feet, the bus went over the side of the embankment and toppled over on its side.

The highway at the scene of the accident is 22 feet wide and has an uphill grade. The bus was 8 feet wide and 25 feet, 10 inches long. On the day in question, the highway was slushy and snow was piled high along the edge of the road.

A public carrier owes its passengers a high degree of care but it is not an insurer. Where a passenger seeks to recover from a public carrier damages for injuries, the burden is on him to prove the carrier's negligence in all cases except where the accident happened through a defective appliance or a means of transportation such as tracks, cars, machinery or motive power. Nebel v. Burrelli, 352 Pa. 70, 75, 41 A.2d 873; Swink v. Philadelphia Rapid Transit Co., 277 Pa. 220, 120 A. 827; Zaltouski v. Scranton R. Co., 310 Pa. 531, 534, 165 A. 847, 848; Dupont v. Pennsylvania R. Co., 337 Pa. 89, 91, 10 A.2d 444, 445, 129 A.L.R. 1337.

Plaintiffs allege three grounds on which a jury could find the defendant bus company was negligent.

(1) Although the bus was always in its proper right hand lane, the bus driver did not 'give way to the right' in favor of the overtaking vehicle as required by law. ¹ If this section were interpreted as narrowly and literally as appellants contend it should be, it would virtually paralyze traffic especially in cities. Statutes are to be reasonably construed; there is a statutory presumption that 'The Legislature does not intend a result that is absurd, impossible of execution or unreasonable.' Statutory Construction Act, § 52, infra. To give a provision or provisions of a statute 'an unreasonably or absurd construction would violate the fundamental rules of statutory interpretation. Sterling v. City of Philadelphia, 378 Pa. 538, 541, 106 A.2d 793; American Brake Shoe Co. v. District Lodge 9 of the International Association of Machinists, 373 Pa. 164, 172, 94 A.2d 884, 37 A.L.R.2d 675; Statutory Construction Act of May 28, 1937, P.L. 1019, Art. IV, §§ 51, 52, 46 P.S. §§ 551, 552.' Sherwood v. Elgart, 383 Pa. 110, 114, 117 A.2d 899, 901.

Assuming, arguendo, that this section of the Motor Vehicle Code requires a motorist in his proper lane to move over to the very edge of the highway whenever a motorist in the left hand lane is trying to pass him, we are still unable to find any evidence of negligence. There was no clear or positive testimony by any witness that the bus driver should have seen that O'Donnell could not safely pass on the other side of the highway, or that the bus driver did not give way to the right and that the bus driver could have safely pulled further over to the right dege where the snow was piled along the road. The only testimony on this point which was favorable to plaintiff was given by O'Donnell:

'Q. From the time you sounded your horn until the accident occurred, did Mr. Parapchak, the bus driver, give way with the bus to the right? A. I wouldn't say he did.'

This is not sufficient to prove negligence. It is impossible to tell from the evidence (a) whether the bus driver did or did not give way to the right, and (b) whether it was reasonably possible for him to pull over further to his right. Plaintiff failed to prove how far defendant was from the edge of its (proper) lane, and the jury would have to guess whether or not, in view of the snow on the edge of the road, the bus (a) could and (b) shoudl have pulled over to the right edge of its lane. A jury can not guess or speculate. Schofield v. King, 388 Pa. 132, 130 A.2d 93. Plaintiffs' first contention is obviously without merit.

(2) Plaintiffs' second contention is that the bus driver was negligent in increasing the speed of the bus before he was completely passed by the overtaking vehicle. ² (a) The evidence does not support this contention. The bus driver, called by plaintiff as for cross-examination, testified he was traveling at a speed of 20 miles per hour when the collision occurred. This was substantially corroborated by the testimony of O'Donnell. The collision occurred 352 feet beyond a railroad crossing at which both the bus and O'Donnell's vehicle had stopped. O'Donnell testified that he started to pass the bus approximately 100 feet beyond the crossing. At a point approximately 80 feet beyond the crossing, the bus was traveling 11 to 12 miles per hour. O'Donnell testified that he did not notice the bus increasing its speed. Therefore, in view of this evidence it would be impossible for the jury to do anything but speculate as to when the bus increased it speed from 12 to 20 miles per hour. (b) Furthermore, assuming that the bus increased it speed as O'Donnell started to pass, there is no evidence that this was the proximate cause of the accident.

In Kite v. Jones, 389 Pa. 339, at page 347, 132 A.2d 683, at page 687, the Court said:

"'Ordinarily the question whether the negligence of a defendant is a proximate cause of the accident is for the fact-finding tribunal * * *, but where the relevant facts are not in dispute and the remoteness of the causal connection between defendant's negligence and plaintiff's injury clearly appears from the evidence the question becomes one of law, and, as such, is within the scope of appellate review. [Citing cases.]"'

(3) Plaintiffs' third contention is that the defendant was negligent in failing to have the bus equipped with chains. There is absolutely no merit in this contention. There was no proof of skidding. The accident was not caused by skidding but was due solely to O'Donnell's gross negligence, i. e., O'Donnell's failure to judge the distance correctly when he swung back from the left lane into the right lane.

Judgment affirmed.

MUSMANNO, Justice (dissenting).

The driver of a passenger bus should exercise as much care in operating his vehicle as a father taking his children to school. It is not enough that he just barely stays within the limitations of the Motor Vehicle Code. He must be constantly vigilant, unceasingly wary, and acutely preoccupied for the safety of his passengers who are the children of other parents and the parents of other children.

The measure of care manifested by the driver in this case can be gauged by the fact that when another automobile came into contact with his bus, endangering the people entrusted to his care, he remarked: 'What the hell.' Five of his women passengers were injured and they brought suit against his employer. After they told their story in Court, the Trial Judge entered a compulsory nonsuit which this Court has affirmed--and I dissent.

I had occasion to say in 1955 that:

'The granting of a nonsuit is one of the most drastic procedures accomplished in a courthouse, and, in my opinion, it should not be invoked unless the plaintiff's case is so obviously opposed to reason, natural law, and the immutable sequence of cause and effect that it would be folly to consume time deliberating on it. A nonsuit shuts off one-half of the case which, even though coming from the opposing side, might still supply illuminating facts which would assure the ideals of Justice that no one's cause is being...