In King v. Brillhart, 271 Pa. 301, we said: "The statement charges negligent management of the car and that is what the evidence tends to establish.Summary of this case from Arner v. Sokol
July 1, 1921.
Action by Jeremiah King and Elwood J. King, a minor, by Jeremiah King, his father, against Robert N. Brillhart, resulting in compulsory nonsuit. From an order refusing to take off such nonsuit plaintiffs appeal.
Reversed, with a procedendo.
If plaintiffs allegation charging negligent management of defendant's automobile was not such a statement in the concise and summary form of the material facts upon which the plaintiff relies as is contemplated by Practice Act May 14, 1915, P.L. 483, § 5, 12 P.S. § 386, the defect was waived by defendant's affidavit to and going to trial on the merits, in view of section 21 of the act, section 491.
**515 Appeal from Court of Common Pleas, York County; N. Sargent *302 Ross, judge. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ.
J. A. Hoober, of York, for appellants.
John J. Bollinger, of York, for appellee.
This is an action of trespass by a father and minor son for personal **516 injuries to the latter, whom we will call the plaintiff. On Sunday afternoon, April 27, 1919, plaintiff, then 16 years of age, was walking with another boy along the edge of a paved highways in York county when he was struck and injured by an automobile owned and driven by defendant. The auto was coasting down grade when it overtook and struck the boys who were near other pedestrians and two automobiles going in the opposite direction. The evidence indicates that defendant saw the boys in ample time to have avoided the accident, but overlooked their presence while passing the two cars and other people; also that he failed to give warning of his approach by sounding the horn or otherwise. It was in broad daylight, the highway was straight, the boys were walking along the edge of the pavement, and, so far as appears, did not know of his approach or change their course. In fact, several witnesses testify that later on the same day defendant exonerated the boys from blame, and, in effect, said the accident resulted from his own fault. Plaintiffs statement averred in general terms that the direct, immediate, and sole cause of the accident was the defendant's careless and negligent operation of the car; also averred that it was being run at an excessive and dangerous rate of speed; to which statement defendant filed an affidavit of defense, denying the charge of negligence and setting up plaintiff's contributory negligence as cause of the accident. The trial court granted a compulsory nonsuit, *304 and, from its order refusing to take off the same, plaintiff brought this appeal.
 The action of the court was error. True, the collision did not prove defendant's negligence (Flanigan v. McLean, 267 Pa. 553, 110 Atl. 370; Stearns v. Spinning Co., 184 Pa. 519, 39 Atl. 292, 39 L. R. A. 842, 63 Am. St. Rep. 807), but the evidence was such as to require the submission of that question to the jury, who might have found that defendant came up behind the boys, who were in plain sight, and struck them without warning. To drive into a pedestrian, who is in full view, and does not suddenly change his course, is evidence of negligence (Petrie v. E. A. Myers Co., 269 Pa. 134, 112 Atl. 240; Reese v. France,62 Pa. Super. Ct. 128), as is also the failure to give him warning (Huddy on Automobiles [5th Ed.] p. 535, § 432). The trial judge says the evidence tending to prove those facts was not worthy of credit, but that was for the jury. There was no evidence of excessive speed, but the facts and circumstances tend to show negligence in other respects. As stated in the opinion of the court by Mr. Justice Kephart in Anderson v. Wood, 264 Pa. 98, 102, 107 Atl. 658, 659:
' Speed is not the only element that enters into the question of negligence, and, regardless of it, a car may be under such imperfect control as to amount to negligent operation, and evidence of it would sustain the charge of negligence.'
  There was no sidewalk, and in its absence pedestrians' rights upon the paved roadway are equal to these of vehicles. Petrie v. E. A. Myers Co., supra. That a pedestrian fails to turn and look back while walking in the street is not of itself sufficient to convict him of contributory negligence (Lamont v. Adams Express Co., 264 Pa. 17, 107 Atl. 373; Berry on the Law of Automobiles [2d Ed.] § 217), and no other fact is here shown tending in that direction. So the question of contributory negligence could not be decided as one of law. In fact, the trial judge did not rule the case against the plaintiff upon that ground.
*305  There was no variance between the allegata and probata. The statement charges negligent management of the car, and that was what the evidence tends to establish. True, the former may not be such a statement, in a concise and summary form, of the material facts upon which the plaintiff relies as is contemplated by section 5 of the Practice Act of 1915 (P. L. 483; Pa. St. 1920, § 17185), but, if not, it was waived by defendant's affidavit to, and going to trial upon, the merits. Section 21 of the Act (P. L. 487; Pa. St. 1920, § 17201) provides:
'The court upon motion may strike from the record a pleading which does not conform to the provision of this act, and may allow an amendment or a new pleading to be filed upon such terms as it may direct.'
Thereunder a defendant may move to strike off an insufficient statement, or, if it is too indefinite, may obtain a rule for one more specific. Failing to do either, he will not be entitled to a compulsory nonsuit because of the general character of plaintiffs statement. The rule entitling a defendant to ask for a bill of particulars has become obsolete under the Practice Act; for every statement of plaintiff's claim, drawn in compliance therewith, embodies a bill of particulars. If not so drawn the proper remedy is as above stated.
The judgment is reversed, with a procedendo.