Ellsworthv.Lauth

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of PennsylvaniaApr 24, 1933
311 Pa. 286 (Pa. 1933)
311 Pa. 286166 A. 855

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March 28, 1933.

April 24, 1933.

Negligence — Automobiles — Duty of guest — Appreciating impending peril.

1. It is the duty of the driver of an automobile to keep a continuous lookout to see that the car does not run into danger; the duty of a guest in the car, having no connection with its running, is not so great. [289]

2. The extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case; unless these are manifest and the inferences to be drawn therefrom are clear beyond peradventure, the issue involved must be submitted to the jury for determination. [289]

Practice — Trial — Withdrawal of juror — Reference to insurance company.

3. A juror should not be withdrawn and the case continued because reference is made in the evidence to an insurance company, if the reference does not disclose, nor can it fairly be inferred therefrom, that the insurance company had insured defendant against liability and was, therefore, interested in the result of the trial. [289-90]

4. Nor is such action required where the reference to an insurance company was brought out by or for defendant, and plaintiff was not responsible, directly or indirectly, for its production. [290]

5. Under the circumstances specified in the two preceding syllabi the trial judge will not be convicted of error if he strikes out the objectionable answer, and carefully cautions the jury not to pay any attention to what the witness said on the subject. [289-90]

Practice — Trial — Charge — Exception — General — Inadequacy of charge — Fundamental error.

6. An alleged error in a charge to the jury, which is not basic and fundamental, cannot properly be complained of under a general exception. A contention that the charge is inadequate as to a given point, is within that rule. [290]

7. If the trial judge charges the jury upon all points to which his attention is called, in response to an inquiry at the end of the charge whether anything has been omitted or overlooked, an allegation that the charge is inadequate will not be considered on appeal unless the alleged inadequacy is clearly basic and fundamental. [291]

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

Appeal, No. 127, Jan. T., 1933, by defendant, from judgment of C. P. Elk Co., June T., 1930, No. 52, on verdict for plaintiff, in case of Grace Ellsworth v. R. G. Lauth. Affirmed.

Trespass for personal injuries. Before LEWIS, P. J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $16,500. Defendant appealed.

Error assigned, inter alia, was refusal of judgment n. o. v., quoting record.

Charles J. Margiotti, with him Edward Friedman and W. W. Barbour, for appellant.

L. B. Gregory, of Driscoll Gregory, for appellee.


Argued March 28, 1933.


Plaintiff was injured while riding as a guest of defendant, in an automobile owned and being driven by him along a well-paved country road, nearly level, at the rate of 40 to 50 miles an hour. When the car reached the end of that highway, defendant, instead of turning it into the intersecting road, continued straight ahead, so that the car jumped a ditch on the far side of the crossroad and overturned in a field just beyond. On this appeal from the judgment entered on a verdict in favor of plaintiff, no question is raised as to defendant's negligence or as to the amount of the verdict. Hence these matters will not be reviewed, but we shall limit this opinion to showing that defendant has no just cause of complaint regarding the matters urged as reasons for reversing the judgment.

Defendant's automobile was a one-seated car, defendant being on the left side thereof, plaintiff in the middle and another lady guest on the right. The time of the accident was an early morning in late October, when day was just breaking. Defendant was an experienced driver; knew the speed at which he was traveling; was acquainted with the route he intended taking, and that he would have to turn into another road at the place of the accident. He had last traveled that route the evening before. Plaintiff was not an automobile driver; did not know how fast the car was going; was not acquainted with the road, though she had been plaintiff's guest on the trip the evening before the accident; and was so seated as to have little opportunity, at that time of day, to see the surrounding country.

Defendant's first contention is that the court below erred in not affirming his point for binding instructions, because of plaintiff's alleged contributory negligence in not seeing the danger which was imminent, and giving him warning of it. This contention is erroneous both on the facts and the law. She was not running the car and defendant was. He knew the speed he was traveling, but she did not. He knew the route and that they were probably nearing the turn in the road, but she did not. Moreover, as the driver of the car, he was bound to keep a continuous lookout to see that they ran into no danger, and she was not: Barth v. Lackawanna Wyoming Valley R. R. Co., 310 Pa. 168. "The extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case; unless these are manifest and the inferences to be drawn therefrom clear beyond peradventure, the issue involved must be submitted to the jury for determination": Minnich v. Easton Transit Co., 267 Pa. 200, 204. To the same effect are Jerko v. Buffalo, Rochester Pittsburgh Ry. Co., 275 Pa. 459; Murray v. Baltimore Ohio R. R. Co., 281 Pa. 474, 476; Schlossstein v. Bernstein, 293 Pa. 245. Under the facts above stated, the court could not have rightfully ruled, as a matter of law, that plaintiff was guilty of contributory negligence; and the jury, after a charge as to which, respecting this point, no complaint is made, found she was not guilty as a matter of fact.

It is next urged that the court below erred in not withdrawing a juror under the following circumstances: When plaintiff's physician was under cross-examination by defendant's counsel, the following appeared: "Q. Have you ever rendered her [plaintiff] a bill for your services?. . . . . . A. I did not render a bill direct to her, I rendered a bill direct to the insurance company at their request." Defendant's counsel thereupon moved the court to withdraw a juror and continue the case, which motion was refused because the answer "did not indicate that the reference was to an insurance company that had insured defendant against liability and was, therefore, interested in the result of the trial"; but the trial judge struck out the answer and carefully cautioned the jury not to pay any attention to what the witness had said on that subject. This was a proper disposition of the matter. The answer was to a question propounded by defendant's counsel on cross-examination, with which plaintiff had nothing to do, and was not led up to by anything asked in the examination in chief. While the rule which forbids the introduction of evidence by plaintiff that defendant is insured against liability, will be strictly adhered to, it would be an anachronism to apply it in favor of a defendant who himself educed the evidence to which he objects, without plaintiff being in any way responsible, directly or indirectly, for its production. See Amey v. Erb, 296 Pa. 561, 567.

The only other matter referred to in the statement of the questions involved (to which the appeal is limited: Keller v. N.J. Fidelity Plate Glass Ins. Co., 306 Pa. 124) grows out of the use of the American Experience Tables of Mortality. When they were offered in evidence, the trial judge said he would explain in his charge to the jury the extent to which they might properly be considered. This he did, and no specific objection was made thereto. Defendant now contends, under his general exception to the charge, that the explanation of the trial judge was inadequate. This alleged error not being basic and fundamental, however, cannot properly be complained of under a general exception: Medvidovich v. Schultz, 309 Pa. 450, 453. But if we assume it could be, defendant would not be helped under the circumstances appearing here. At the end of the charge, the trial judge said to counsel: "Is there anything further you wish me to call to the jury's attention?" and the answer was "Nothing further, your Honor." The objection not being basic and fundamental, that answer concluded the matter: Moore v. Leininger, 299 Pa. 390.

The judgment of the court below is affirmed.


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