Sudol v. Gorga

• Decision Date: 22 March 1943
• Docket Number: 59
• Parties: Sudol et ux., Appellants, v. Gorga
• Court: Pennsylvania Supreme Court

31 A.2d 119

346 Pa. 463

Sudol et ux., Appellants, v. Gorga

No. 59

Supreme Court of Pennsylvania

March 22, 1943

January 13, 1943, Argued

Appeal, No. 59, Jan. T., 1943, from order of C.P. Delaware Co., Dec. T., 1941, No. 11, in case of John Sudol et ux. v Attilio Gorga, guardian ad litem of John Peter Gorga. Order reversed.

Trespass for wrongful death of minor. Before MacDADE, P.J.

Compulsory nonsuit entered. Motion to take it off refused. Plaintiffs appealed.

The order refusing to take off the compulsory non-suit is reversed, with a procedendo.

Vincent P. Desmond, with him Alex J. McCloskey, Jr., for appellant.

Guy G deFuria, for appellee.

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

OPINION

MR. CHIEF JUSTICE MAXEY:

This is an appeal from the refusal of the court below to take off a compulsory non-suit in an action of trespass. Plaintiffs brought suit to recover damages for the death of their seventeen year old son, when an automobile in which he was riding as a passenger overturned on a highway in Maryland. The action was directed against a minor, whose father was named as guardian ad litem for the purpose of this suit. The minor was the driver of the car in which the victim was a passenger.

Both the deceased and the minor defendant, Sudol, and three other youths, all Chester High School students, left Chester by automobile to join the Senior Class of the school in Washington, D.C., on May 24, 1941. While proceeding on the Baltimore Pike, at a point about 50 miles from Chester, the automobile turned over and John Sudol was thrown from it and fatally injured. It was testified by two of these youths and by the defendant, who was called as for cross-examination that a truck proceeding in an opposite direction forced the automobile driven by the defendant off the road.

At the point of the accident there is a long, steep grade. The car in which the victim was a passenger was ascending that grade. The highway was 18 feet wide; the shoulder, which was 3 feet in width, was rough and was of macadam. It was "broken in spots" and it left "a drop of four to six inches" at its far edge. From the bottom of the hill the driver of the ascending car had a view to the top of at least three hundred to four hundred yards. He saw when one quarter of the way up the hill a truck coming over the top of the hill, swerving to the automobile's side of the road. The defendant believed that the on-coming truck would "straighten up" and therefore he did not slacken his car's speed, which was about forty-five miles an hour, but "went straight ahead". He testified: "After he came toward me I swerved to miss him" and that the truck "was five to ten feet in front of" him when he "first went off the road".

The trial judge entered the non-suit "upon the ground that the testimony clearly disclosed no negligence whatever on the part of the defendant, John Peter Gorga, but on the contrary showed that the occurrence, which in turn caused the death of plaintiffs' decedent, was brought about by the negligence of the operator of a large truck or automobile carrier which forced the automobile of the defendant from the road, causing it to overturn."

Since this accident took place in Maryland, the legal standard by which it is to be determined whether or not a cause of action is created is the law of that state: Section 391, Restatement of the Law of Conflict of Laws; Mike et al., Appellants, v. Lian, 322 Pa. 353, 185 A. 775; Dickinson v. Jones, 309 Pa. 256, 163 A. 516. The law of Maryland is that a host operating an automobile owes to a guest in that car the duty of due care: Powers v. State of Maryland, to the use of Reynolds, 178 Md. 23, 11 A.2d 909. The law of the forum determines whether there is sufficient evidence on an issue of fact to warrant its submission to a jury. Restatement of the Law; Conflict of Laws, sec. 595. Robertson v. Jewel Tea Co., Inc., Aplnt., 309 Pa. 293, 163 A. 530; Singer, Admrx., Aplnt., v. Messina, 312 Pa. 129, 167 A. 583.

We find that under the facts of this case there was sufficient evidence of the defendant's negligence as to make the entry of a non-suit unwarranted. When he saw the truck coming down the hill towards him, a few hundreds of yards away, and swerving to his side of the road, it was his duty in the interest of the safety of his passengers to slacken his speed substantially or possibly to stop. When he saw that the driver of the oncoming truck was driving carelessly, he could not with prudence assume that this carelessness was but a momentary aberration and that this driver would make a timely return to proper...