Opinion
October 14, 1931.
December 16, 1931.
Negligence — Automobiles — Collision — Right angle street intersection — Contributory negligence — Case for Jury — Guest.
In an action of trespass to recover for damages to an automobile and for personal injuries sustained in a collision with defendant's car at a right angle street intersection, the plaintiffs' evidence established that they were slowly proceeding northwardly and that when they approached the house line of the intersecting street the driver-plaintiff saw the defendant's car to his left about 275 feet from the intersection. He proceeded and when he came to the curb line, he saw defendant's car 100 feet away. When the front of the car occupied by the plaintiffs was more than half way across the intersection the driver-plaintiff saw that the defendant was trying to cut in front of him. In an effort to avoid a collision with the defendant he turned to his right but was run into by the defendant who was at the time going east on the part of the street devoted to westbound traffic.
In such circumstance the questions of the defendant's negligence and the plaintiffs' contributory negligence were for the jury and a judgment for the plaintiffs will be affirmed.
The question as to a guest's contributory negligence in joining the driver of the car in testing an obvious danger can only arise in case the driver of the car is contributorily negligent.
Appeals No. 345 and 346, October T., 1931, by defendant from judgments of M.C., Philadelphia County, March T., 1930, No. 295 and 296, in the cases of Joseph A. Rocks v. Harry M. Bender and Joseph J. Andris v. Harry M. Bender.
Before TREXLER, P.J., KELLER, LINN, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Trespass to recover for damages to an automobile and for personal injury. Before KNOWLES, J.
The facts are stated in the opinion of the Superior Court.
Verdict for Joseph A. Rocks in the sum of $337 and for Joseph J. Andris in the sum of $308 and judgments entered thereon. Defendant appealed.
Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.
Charles E. Kenworthey, and with him Evans, Bayard and Frick, for appellant.
G. Levering Arnhold, for appellees.
Argued October 14, 1931.
These actions of trespass arose out of the same automobile collision. They were tried together, and the appeals will be decided in one opinion.
The plaintiff Rocks, was driving his automobile northwardly on 42d Street, Philadelphia, at a low rate of speed about 1:30 o'clock in the morning of November 24, 1929. The plaintiff Andris was his guest. As the car approached the south house line of Baltimore Avenue Rocks saw defendant's automobile coming down Baltimore Avenue about 275 feet to his left, traveling in the east bound car track. Baltimore Avenue is forty-four feet wide between curbs, with fourteen feet six and three-fourths inches between the south curb and the south rail of the east bound trolley track. Having ample time to cross safely if defendant was traveling at a reasonable rate of speed, he proceeded and when he came to the curb line saw defendant's car 100 feet away. He passed the first car track and his two front wheels were in the west bound track when he saw that defendant was trying to cut in front of him, and to avoid the impending collision he turned east into Baltimore Avenue and was run into by defendant who was at the time going east on the part of the street devoted to west bound traffic.
Appellant cites a number of cases which he contends support his claim that the plaintiff Rocks was guilty of contributory negligence as matter of law, but all of them differ from this one in some material particular. Negligence cases, like will cases, depend on the particular facts of the case, and cannot govern as binding precedents unless the facts are identical, which is rarely the case.
The lateness of the hour, the difficulty of determining the rate of defendant's speed by a moving headlight, the plaintiff's right to assume that the defendant, even although traveling fast, would use reasonable care and slow down to a reasonable speed within the distance of the hundred feet that separated them when plaintiff actually entered the intersection, together with his statutory right of way, were matters for the consideration of the jury and could not be decided by the judge as matter of law: Wagner v. P.R.T. Co., 252 Pa. 354; Alperdt v. Paige, 292 Pa. 1.
We think the facts of the case bring it more nearly within the principles which ruled Fry v. Derito, 97 Pa. Super. 131; Keystone Lead Co. v. Frechie, 94 Pa. Super. 395; Schlossstein v. Bernstein, 293 Pa. 245; Swift v. Corrado, 292 Pa. 543, and Hayes v. Schomaker, 302 Pa. 72, than those relied on by appellant; and that the defendant's negligence and plaintiff's contributory negligence were questions of fact for the jury rather than of law for the court.
If the driver Rocks was not guilty of contributory negligence, as the jury found, it follows that the passenger Andris was not either. The latter's alleged contributory negligence in joining Rocks in testing an obvious danger could only arise in case the driver of the car was contributorily negligent.
The assignments of error in both cases are overruled and the judgments are respectively affirmed.