Summary
In Stern v. Passaro, 326 Pa. 187, where a car coming down a hill was out of control because of the hill's icy condition and a car coming up the hill seeing its condition did not stop, in holding the latter negligent for not observing this duty, we held that while it was not certain that the accident would have been entirely avoided had defendant slowed down or stopped the car, the possibility of such severe consequences as did result would have been materially lessened.
Summary of this case from Derrickson et Ux. v. TomlinsonOpinion
January 26, 1937.
March 22, 1937.
Negligence — Automobiles — Approaching car out of control — Zigzagging from side to side — Failure to reduce speed, stop, or to get off road.
In an action for injuries sustained by the minor plaintiff when the car in which she was riding as a guest collided with an automobile driven by defendant, testimony that plaintiff's car was going down a hill in second gear at a speed of approximately ten miles an hour, that the driver lost control of it because the road was icy and the car skidded in zigzag fashion from one side to another for a distance of approximately one hundred twenty-five feet down the hill, and then collided with defendant's car which approached from the opposite direction, that when the car began to skid defendant's car was approaching at a distance of about five hundred feet, that it came on without reducing speed and at the time of the collision was traveling at about forty-five miles an hour, and that defendant's automobile was on its right side of the road but made no effort to get off the road or stop, was sufficient to warrant a finding that defendant was negligent.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeals, Nos. 91 and 95, Jan. T., 1937, from judgment of C. P. Lackawanna Co., Sept. T., 1935, No. 1527, in case of Helen Stern, by her parents and next friends, Adolph Stern and Fannie Stern, and Adolph Stern and Fannie Stern, in their own right, v. Harry Passaro. Judgment reversed.
Trespass for personal injuries. Before HOBAN, J.
The opinion of the Supreme Court states the facts.
Compulsory nonsuit entered. Motion to take it off refused. Plaintiffs appealed.
Error assigned was order discharging rule to take off nonsuit.
R. L. Levy, with him A. M. Lucks, for appellants.
Walter L. Hill, of O'Malley, Hill, Harris Harris, for appellee.
Argued January 26, 1937.
These appeals are from the refusal of the court below to take off a compulsory nonsuit. The suit is by the parents of a minor plaintiff for themselves and in her behalf. She was injured on April 17, 1935, while a guest in a car owned and driven by one Handler, which collided with an automobile driven by defendant, at a point on the Lackawanna Trail about three miles north of Tobyhanna. Handler's car was traveling from New Jersey to Scranton, and at the point where the accident occurred the highway crossed the Poconos in open country. The concrete highway was covered with ice and snow at and near the point of the accident. The car had passed over the brow of a hill and had traveled about seventy-five feet down the grade when it began to skid from side to side on the road. Handler testified that before starting down the grade he put the car in second gear as a measure of safety, and that shortly thereafter he lost control of it because the surface of the road was "like a sheet of ice." The car continued to skid in zigzag fashion from one side to the other for a distance of approximately one hundred twenty-five feet down the hill, and then collided with defendant's car which approached from the opposite direction. Handler and the plaintiff testified that when the car in which they were riding began to skid they looked forward and saw defendant's car approaching at a distance of about five hundred feet; that it came on without any apparent reduction of speed; that at the time of the collision it was traveling at about forty-five miles per hour; that it was on its right side of the road but made no effort to get off the road; and that defendant took a chance on his ability to get by at a moment when the skidding car would be on its own side of the road.
The view of the court below was that defendant was not guilty of negligence, that he could not have been expected to "have seen the action of Handler's car, inferred that it was out of control and so have reduced his own speed, stopped his car or have it under such control that he could have avoided the accident." With this we cannot agree. Defendant must be taken to have seen what was immediately in front of him on the highway; he was bound to see what was obvious. The record indicates that he did see Handler's car, and that it then was out of control and was skidding from one side of the road to the other. Defendant had sufficient time and space in which to stop, or at least to greatly reduce the speed of his car, possibilities made easier by the fact he was driving upgrade. The skidding car was going down the hill at an approximate speed of only ten miles an hour. The evidence shows that defendant could have drawn off to the side of the road to allow more space for the other car to pass. It is possible that even if defendant had stopped his car, the other car would have continued to skid until it collided with his car. But it is certain the same damage would not have resulted, and it is possible there would have been none. There is a vast difference between the collision of a car zigzagging across a road at ten miles per hour with one standing, and the collision of such an uncontrolled car with one approaching at forty-five miles an hour.
At the trial the facts may appear to be quite different from the version that has come to us on appeal from the compulsory nonsuit. When the other side is heard the jury may take a very different view. On the record before us, however, the negligence of defendant is palpable.
The judgment of nonsuit is reversed and the case returned with a procedendo.
Judgment reversed.