Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before DOBIE and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
KALODNER, District Judge.
This suit arises from an automobile accident in which plaintiff's husband, Levi Frederick Dubrock, was killed. The trial resulted in a verdict and judgment in the sum of $8,000 for the plaintiff. Defendant moved for judgment n.o.v. and also for a new trial averring error in the Court's charge to the jury and complaining of an excessive award of damages to plaintiff. The case is here on appeal from an order of the trial judge denying defendant's motions.
The facts are as follows: The accident in controversy occurred on September 14, 1941, a clear, dry day, at about 2 P.M. near Kittanning, Pa., on Route 422. At the scene of the collision this Route is a straight three lane concrete highway, with a slight grade from west to east, and is intersected on its north side by what is known as the Red Mill Road. The uncontradicted testimony of two eyewitnesses was to the effect that the sedan which Dubrock was operating was travelling at a speed of about twenty miles per hour in an easterly direction on Route 422 in the center lane, and was "angling" to the left with its left wheels on or a little over the line marking off the center lane from the northernmost or left lane of the highway. The evident purpose of Dubrock was to make a left turn into Red Mill Road. At this time, according to the testimony, the defendant's tractor-trailer was about 100 feet away, travelling in a westerly direction on Route 422 at approximately 40 miles per hour. Apparently realizing that the Dubrock car was about to make a left turn, the driver of the truck moved into the center lane evidently to go around the Dubrock car on the outer lane. One of the witnesses, Paul Dosch, shouted a warning to Dubrock, with whom he was acquainted, and Dubrock tried to turn back to the center lane to avoid colliding with the truck. The point of impact was in the center lane, the Dubrock car being hit at the front towards the left. There were skid marks from the truck's tires for 68 feet in the center lane, and the deceased's car was pushed 198 feet from the end of the skidmarks. At the trial the defendant offered no evidence as to the cause of the accident.
Considering first defendant's motion for judgment n.o.v. we are of the opinion the trial judge was justified in denying it. Considering the evidence in a light most favorable to the plaintiff, we cannot say as a matter of law that the deceased was contributorily negligent, nor that defendant's conduct was not the proximate cause of the accident. It is a jury question whether it is negligence to attempt a left turn at twenty miles per hour in the face of oncoming traffic over 100 feet distant travelling at 40 miles per hour. Even granting the deceased made a mistake in turning to the right to avoid the collision, such mistake cannot bar recovery unless the emergency was created by the deceased's negligence. Miller v. Southern Asphalt Co., 1934, 314 Pa. 289, 171 A. 472; Brennen v. Pittsburgh Rys. Co., 1936, 323 Pa. 81, 86, 186 A. 743; Restatement, Torts, sec. 296. As we said, whether deceased's conduct did give rise to the emergent situation is a question for the jury. Moreover, it is true, as the trial judge pointed out, that there is a presumption the deceased exercised due care for his own protection. Johnson v. Hetrick, 1930, 300 Pa. 225, 229, 150 A. 477; Kriesak v. Crowe, D.C., 44 F.Supp. 636, affirmed 3 Cir., 1942, 131 F.2d 1023.
With regard to his motion for a new trial, defendant asserts that the trial judge erred in refusing to charge as requested on the matter of proximate cause; that the trial judge erred in his charge as to the right of way at intersections; and that the damages awarded were excessive.
On the subject of proximate cause, the defendant requested the trial judge to charge that:
"If the proximate cause of this accident was the deceased turning back toward the right side of the road when the truck had made its turn to pass behind it, then your verdict must be for the defendant."
It is difficult to see just how this request would benefit defendant, for, under the Pennsylvania rule, in order to defeat recovery on the ground of contributory negligence it is not necessary that the negligence be the proximate cause, but it is enough if it so contributed to the accident that without it the accident would not have occurred. Goff v. College Hill Borough, 1930, 299 Pa. 343, 347, 149 A. 477; Hayes v. Schomaker, 1930, 302 Pa. 72, 152 A. 827; Grimes v. Yellow Cab Co., 1942, 344 Pa. 298, 304, 25 A.2d 294; 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed. (1935), § 2553, p. 367. It is plain that a charge as to the contributory negligence of the deceased would adequately cover the substance of defendant's request, and the learned trial judge substantially and properly covered this matter when he said: (R 99)(12a)
"If it should appear in the course of testimony in the case that the plaintiff's husband, Levi Frederick Dubrock, was guilty of contributory negligence - and that means that if some act or omission on his part contributed to the collision which brought about his death - then she cannot recover.In other words, the plaintiff must present a case is free of contributory negligence."
"If the truck driver was negligent and the collision resulted from the negligence of the truck driver, and there was no contributory negligence on the part of Dubrock in the operation of his car, then the plaintiff ought to recover in this case, your verdict should be for the plaintiff. If, on the other hand there was any act on the part of Dubrock himself which contributed to this accident, which would not have happened had he acted otherwise in view of all the circumstances of the ...