Weinberg v. Pavitt

• Decision Date: 27 June 1931
• Docket Number: 193
• Citation: 304 Pa. 312,155 A. 867
• Parties: Weinberg, Appellant, v. Pavitt et al
• Court: Pennsylvania Supreme Court

155 A. 867

304 Pa. 312

Weinberg, Appellant, v. Pavitt et al

No. 193

Supreme Court of Pennsylvania

June 27, 1931

Argued April 22, 1931

Appeal, No. 193, Jan. T., 1931, by plaintiff, from judgment of C.P. No. 1, Phila. Co., March T., 1930, No. 14831, on verdict for defendant, in case of Annie Weinberg v. M. Eugene Pavitt and Ethel Kale. Reversed.

Trespass for death of plaintiff's husband. Before KUN, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for $8,000 against Ethel Kale, and verdict for defendant, M. Eugene Pavitt. Plaintiff appealed.

Errors assigned were various rulings quoting record and refusal of new trial seriatim.

The judgment is reversed with a venire facias de novo.

Maxwell Pestcoe, for appellant. -- It is well settled that a party is entitled to a simple affirmance or refusal of a point that is properly drawn: Kuhn v. R.R., 261 Pa. 147; Lingle v. Ry., 214 Pa. 500; Citizens Pass. Ry. v Ketcham, 122 Pa. 228.

As to the verdict being against the incontrovertible physical facts appearing from the measurements of the streets and the testimony of the defendant, Pavitt: Hoffman v. R.R., 215 Pa. 62; Davis v. Ice Co., 285 Pa. 177; Feldman v. Chernekoff, 291 Pa. 456; Alperdt v Paige, 292 Pa. 1; Fortune v. Dolfinger, 97 Pa.Super. 545; Powers v. Wiebe, 86 Pa.Super. 392; Westcott v. Geiger, 92 Pa.Super. 80.

For cases in which the plaintiff was not permitted to recover because he was not prepared to stop immediately if danger threatened, see Gray v. Fox, 69 Pa.Super. 218, and Ellison v. Atlantic Refining Co., 62 Pa.Super. 370.

For failure to charge although requested to do so, on the question of drivers being suddenly placed in danger, see Stover v. R.R., 195 Pa. 616; Amey v. Erb, 296 Pa. 561; Community Fire Co. v. Pa. P. & L. Co., 92 Pa.Super. 304; Weiss v. Rys., 301 Pa. 539.

A verdict, rendered as the result of control exercised by trial judge as shown by his remarks, comments and interruptions and by the argumentative character of the charge and undue prominence given defendant's side of the case, should be set aside and a new trial ordered: Sarshik v. Fink, 292 Pa. 256; Wenger v. Barnhart, 55 Pa. 300.

Langdon W. Harris, of Herman & Harris, for appellee. -- Failure to answer a point does not constitute error if its subject-matter is elsewhere passed upon in the charge: Warruna v. Dick, 261 Pa. 602.

As to the verdict being against the incontrovertible physical facts appearing from the measurements of the streets and the testimony of the defendant, Pavitt, see Coleman v. Patton, 84. Pa.Super. 555; Galvin v. Kreider, 293 Pa. 395; Brayman v. Dewolf, 97 Pa.Super. 225; Keystone Lead Co. v. Frechie, 94 Pa.Super. 395; Anderson v. Ry., 251 Pa. 517.

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

OPINION

MR. JUSTICE MAXEY:

Plaintiff brought this action against M. E. Pavitt and Ethel Kale, jointly, charging them with causing the death of her husband by the negligent operation of their respective automobiles. Defendant Kale's automobile at the time of the fatality was driven by her daughter, aged eighteen years. Pavitt, aged twenty-six, was accompanied by his wife. Miss Kale was accompanied by her mother, sister and brother. They sat in the rear seat. Plaintiff's husband was on May 6, 1930, sitting in the front doorway of a store where he was employed. This store was located on the northeast corner of Ninth and Bainbridge Streets, Philadelphia. The defendant Pavitt's car was being driven easterly on Bainbridge Street; the Kale car was being driven northerly on Ninth Street. The two cars collided at this intersection and as a result the Kale car ran upon the curb and fatally crushed plaintiff's husband as he sat in the store doorway. The question of the negligence of the defendants was submitted to the jury. The jury returned a verdict against the defendant Kale for $8,000, but as to the defendant Pavitt, he was held blameless and the verdict was in his favor. Plaintiff asked for a new trial, and this was refused.

Pavitt testified that he approached the intersection at a speed of fifteen or twenty miles an hour and that when he was between the building and curb lines just before he got to Ninth Street he saw the Kale car forty or fifty feet to the right and coming toward the crossing. He said, "I judged I had ample time to cross the street before she came and proceeded across." Miss Kale's brother described Pavitt's speed as "terrific." An apparently disinterested witness testified to Pavitt's speed as being twenty-five miles an hour and that Miss Kale came up Ninth Street slowly over the crossing. It is clear from the evidence that both cars reached the east side of the intersection (where the collision took place) at the same time. Miss Kale turned to the right to avoid the impact, and Pavitt turned to the left for the same purpose. The photographs and description of the damage sustained by the respective cars show that the left rear of the Kale car came in contact with the right rear of the Pavitt car. After the impact the Kale car continued in the direction in which the impact had turned it, jumped the curb and killed the plaintiff's husband.

The trial judge presented the case to the jury on the theory that Pavitt was justified in attempting to cross the intersection unless the Kale car was either in advance or was approaching the intersection at or about the same time as the Pavitt car. The trial judge said in his charge: "All things being equal, a car coming on the right has the right of way. . . . If, as a matter of fact, the Kale car was approaching the intersection of Ninth and Bainbridge Streets at about the same time, certainly if it was in advance, there is no question about it, if it was in advance of the Pavitt car, then the Pavitt car should have given the Kale car the right of way." The clear implication of that instruction is that Pavitt would have been justified in crossing that intersection as he did unless the Kale car (on the right) had reached the intersection in advance or at or about the same time. This is not the complete rule of law relating to crossing intersecting streets as laid down by the appellate courts of Pennsylvania.

In Curry v. Willson, 301 Pa. 467, 471, this court, speaking through Mr. Justice SADLER, said: "It is true that a driver, situated as was plaintiff, must nevertheless exercise due prudence, and cannot insist on the right to advance when he sees that a collision will result from so doing, and he is able to stop and prevent the accident. . . . Where the facts indicate that, though first reaching the intersection, he did not have time to pass in front of the motor given by law the right to advance, and attempts to do so, causing injury, liability attaches."

In Alperdt v. Paige, 292 Pa. 1, this court said of the movements of cars at an intersection: "Instead of keeping any watch on the movement of the automobile coming toward him down the hill, he [the driver on the left] increased his momentum, and failed to look for the defendant until he had traversed 40 feet, and practically crossed its center. It follows that he contributed to the accident, either by failing to continue to observe, or by testing what was apparently an obvious danger in recklessly advancing when he knew defendant was approaching rapidly from the right." Pavitt did about the same thing in this case. He testified that he did not turn his head to look at the Kale car after he saw it forty or fifty feet away. He said: "I could see it a little bit; I didn't turn around and look at it."

In Lochetta v. Cunningham Cab Co., 98 Pa.Super. 4, 6, the court said in an opinion by Judge KELLER: "The car approaching from the left only has the right of way when it arrives at the intersection so far in advance of the car on its right that a reasonably prudent man would be justified in believing that he could clear the intersection of the paths of the two vehicles before the other car arrived there."

In Weber v. Greenebaum, 270 Pa. 382, this court laid down the rule that the provision in the Motor Code governing the conduct of motorists at street intersections means that "where the paths of two approaching vehicles cross at the intersection of public streets, the driver at the left must give way, unless so far in advance of the other "as to afford reasonable time to clear the crossing and thus, in all probability, avoid a collision."

If in the case before us Pavitt had been suing Mrs. Kale for damages to his car caused by the collision, it would have been the duty of the trial judge to rule as a matter of law that he was under his own testimony guilty of contributory negligence. When he was between the houseline and curbline just before the intersection he saw the Kale car forty or fifty feet to the right on Ninth Street. He said "I judged I had ample time to cross the street before she came and proceeded across." He testified that he was driving at the rate of fifteen to twenty miles an hour. Miss Kale said she was driving her car between fifteen and eighteen miles an hour. A car traveling fifteen miles an hour covers twenty-two feet per second. Therefore, according to Pavitt's own testimony, he allowed himself only the two seconds which would elapse while the Kale car was being driven forty-four feet, to take his car from a point between the house line and curb line to a point beyond the intersection. Each street at the intersection was fifty feet wide between house line and house line. The distance from curb to curb was twenty-six feet. If Pavitt was halfway between the house line and the curb line, as he said he was, he would have had to travel at least thirty-two feet before he could clear the eastern curbline of Ninth Street and be out of the...