Wagenbauer v. Schwinn

• Decision Date: 04 January 1926
• Docket Number: 361
• Citation: 285 Pa. 128,131 A. 699
• Parties: Wagenbauer, Appellant, v. Schwinn
• Court: Pennsylvania Supreme Court

131 A. 699

285 Pa. 128

Wagenbauer, Appellant, v. Schwinn

No. 361

Supreme Court of Pennsylvania

January 4, 1926

Argued May 30, 1925

Appeal, No. 361, Jan. T., 1925, by plaintiff, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1922, No. 2488, on verdict for defendant, in case of Charles Wagenbauer v George W. Schwinn. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were various rulings and instructions, quoting record.

The judgment is affirmed.

George J. Edwards, Jr., with him Ralph S. Croskey, for appellant. -- There is no evidence in the case as to the law of New Jersey on this subject and the general rule applies that the law of another state involved in the trial of a cause will be presumed to be the same as the law of the forum, in the absence of evidence to the contrary: Cape May Real Estate Co. v. Henderson, 231 Pa. 82; Musser v Stauffer, 178 Pa. 99; Roberts v. Baking Co., 283 Pa. 573.

It was error for the trial judge to charge that no presumption of negligence arose from the testimony as to unlawful speed: Fry v. Brubaker, 77 Pa.Super. 438; Drake v. Fenton, 237 Pa. 11; Shaffer v. Mowery, 265 Pa. 300; Stehle v. Machine Co., 225 Pa. 348; Jaras v. Wright, 263 Pa. 486; Rockett v. Phila., 256 Pa. 347.

This is what is commonly known as a "guest" case, in which cases the defendant owes plaintiff the duty of ordinary care: Cody v. Venzie, 263 Pa. 541, 546; Ferrell v. Solski, 278 Pa. 565, 567.

It was error for the trial judge to charge that the duty rested on plaintiff to keep his eyes ahead: McClung v. Cab Co., 252 Pa. 478; Washington v. Gulf Refining Co., 257 Pa. 157.

Layton M. Schoch, for appellee, cited: Ferrell v. Solski, 278 Pa. 565; Patton v. Traction Co., 132 Pa. 76; Hill v. Transit Co., 271 Pa. 232; Goldberg v. Friedrich, 279 Pa. 572; Roberts v. Baking Co., 283 Pa. 573; Allen v. R.R., 229 Pa. 97; Hogarty v. Ry., 255 Pa. 236; Greenwood v. R.R., 124 Pa. 572; Wade v. R.R., 220 Pa. 578; Dunlap v. Transit Co., 248 Pa. 130; Martin v. R.R., 265 Pa. 282.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Defendant driving his own automobile in which plaintiff and others were guests on a ten-foot-wide bituminous road in the State of New Jersey with gravel and sand "shoulders" approached a turn in the road, where it was intersected by another sandy country road, without moderating his speed, which was at least thirty-five miles an hour, and in endeavoring to make the turn the car upset and plaintiff sustained the injuries to recover damages for which this action is brought. The trial resulted in a verdict for defendant and from the judgment thereon plaintiff appeals.

The contention of appellant is that the overturning of the car was due to the unlawful speed at which it was driven and he relies as the basis for his charge of unlawful speed upon the fact that under the Pennsylvania Motor Vehicle Act of June 30, 1919, P.L. 678, as amended by the Act of May 16, 1921 P.L. 582, section 8, a speed in excess of thirty miles an hour is prohibited and upon the presumption (Roberts v. Freihofer Baking Co., 283 Pa. 573) that the New Jersey law is the same as our own. He did not declare on the New Jersey statute nor did he offer it in evidence. It may be a very interesting question for investigation when its solution is necessary to the determination of a case whether the presumption as to similarity of the law applies to such an enactment as the regulation of speed (see Wigmore on Evidence, 2d ed., vol. 5, sec. 2536) but we are not called upon to pursue the investigation in this case because the plaintiff is barred from recovery by his own concurring negligence. He was seated on the front seat of the car with the driver and testified that he made no objection to the speed, indeed that he was satisfied with the way defendant was driving, that just prior to the accident he had paid no attention to what was in front of him on the road, but had been leaning over the back of the seat talking to those who were seated in the rear. Under these circumstances, we...