Shellenberger v. Reading Transportation Co.

• Decision Date: 16 March 1931
• Docket Number: 141,140
• Parties: Shellenberger et al. v. Reading Transportation Co., Appellant
• Court: Pennsylvania Supreme Court

154 A. 297

303 Pa. 122

Shellenberger et al. v. Reading Transportation Co., Appellant

Nos. 140, 141

Supreme Court of Pennsylvania

March 16, 1931

Argued January 19, 1931

Appeals, Nos. 140 and 141, Jan. T., 1931, by defendant, from judgment of C.P. Bucks Co., Dec. T., 1928, No. 53, on verdict for plaintiffs, in case of Mary Shellenberger, by her mother and next friend, Alma Shellenberger, and Alma Shellenberger in her own right, v. Reading Transportation Company. Affirmed.

Trespass for personal injuries. Before KELLER, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for Alma Shellenberger for $6,000 and for Mary Shellenberger for $500. Defendant appealed.

Error assigned, inter alia, was refusal of motion for judgment for defendant n.o.v., quoting record.

The assignments of error are overruled and the judgments are affirmed.

Webster S. Achey, for appellant. -- The negligence of the driver of the automobile was the proximate cause of the accident Nirdlinger v. Am. D. Tel. Co., 245 Pa. 453; Behling v. Pipe Lines, 160 Pa. 359; Boggs v. Tea Co., 266 Pa. 428; Ellison v. Refining Co., 62 Pa.Super. 370; McGowan v. Boney, 74 Pa.Super. 123; Bernstein v. Smith, 86 Pa.Super. 366.

Even though the bus may have been over the center line of the road, this was no evidence of negligence, because under recent decisions the appellate courts have held there is no law requiring traffic to move in two undeviating lines, hence there is no absolute requirement to keep either side of the road: Bloom v. Bailey, 292 Pa. 348; Boose v. Walker, 86 Pa.Super. 221; Gosling v. Gross, 66 Pa.Super. 304; Post v. Richardson, 273 Pa. 56.

The collision raises no presumption against defendant: Flanigan v. McLean, 267 Pa. 553; Stearn v. Spinning Co., 184 Pa. 519; Eastburn v. Express Co., 225 Pa. 33.

Thomas Ross, for appellee. -- A negligent act may be the proximate cause of an injury although not the sole nor immediate cause, where the intervening act is set in motion or induced by the negligent act and the consequence is one that should have been foreseen: Stemmler v. Pittsburgh, 287 Pa. 365; Haverly v. Ry., 135 Pa. 50; Dannehower v. W.U. Tel. Co., 218 Pa. 216; Nirdlinger v. Tel. Co., 245 Pa. 453.

When one is confronted by a sudden and unexpected danger and has but a moment in which to act, he cannot be held liable for negligence on the ground that he failed to see and follow what may appear on reflection to have been the wiser course: Moquin v. Mervine, 297 Pa. 79, 81; Dunfee v. Phila., 97 Pa.Super. 413.

No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be part of the res gestae: Keefer v. Ins. Co., 201 Pa. 448; Coll v. Transit Co., 180 Pa. 618; P.R.R. v. Books, 57 Pa. 339.

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

OPINION

MR. JUSTICE SCHAFFER:

Defendant appeals from judgments entered on verdicts awarded plaintiffs against it in an action to recover damages for personal injuries sustained in a collision on a public highway between the automobile in which they were riding and one of appellant's large passenger busses.

The appellees are mother and minor daughter. The automobile was being driven by the mother and the daughter was riding in the rear seat with a friend. The testimony of plaintiffs is to the effect that as they approached the scene of the collision, driving on the right-hand side of the road, the mother observed the bus coming in the opposite direction around a long curve at a speed variously estimated up to forty miles an hour. It had been raining but the rain had ceased. The roadway was wet. It was of concrete eighteen feet wide. The automobile and bus were then about seventy feet apart and the bus was over the marked center line of the highway from one and a half to two feet. The bus continuing to travel beyond the center line and seeming to sweep over toward her, the plaintiff driver feared it would strike her; to avoid a collision, she swerved her car to the right; in doing so the right front wheel went off the concrete onto the soft shoulder of the road, and, losing control of her car, it skidded into the bus, striking the latter first on its left front fender and again near its center. The automobile was badly damaged and the plaintiffs injured. She said if she had stayed on the concrete, the bus would have struck her. The collision took place about the apex of the curve. The photographs show that the impact with the bus was at the left and rear of the automobile, indicating that when it struck the bus, the automobile must have been in a somewhat diagonal position on the road. Two witnesses who were driving automobiles along the highway ahead of and in the same direction as plaintiffs' car was going, testified that the bus passed them beyond the curve, that it was being driven over the center line of the road, crowding one of them off the concrete onto the shoulder of the road, and the other to the edge of the cement.

Defendant's testimony, summed up, was that the bus was being driven at an average rate of speed prior to the accident; that it left the concrete on the right side, before the collision in attempting to avoid it; that the automobile was being driven at a high rate of speed; that it slid or skidded into the bus when the latter was off the concrete.

The bus was thirty-eight feet long. The wheel marks indicated that it traveled fifty-two feet on the shoulder of the road and then hit a telephone pole which it pushed some three or four inches out of place....