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September 18, 1947

MILLER et al.

The opinion of the court was delivered by: GOURLEY

This is a trespass action to recover damages for personal injuries and property damage resulting from a collision between the plaintiff's automobile and defendants' truck. A verdict was returned in favor of the plaintiff against the defendants in the amount of $ 10,000 for personal injuries sustained by the plaintiff. The claim for property damage was denied by the Court for the reason that the plaintiff failed to meet the burden of proof required by law in the Commonwealth of Pennsylvania in establishing the correct measure of damage. Although exception was taken by plaintiff to said denial, plaintiff has not pressed said point by way of a motion for a new trial.

The matter now comes before the Court on motion of the defendants to have the verdict rendered in favor of the plaintiff, and any judgment entered thereon, set aside, and to have judgment entered in favor of the defendants.

 Alternatively the defendants move for a new trial for the following reasons:

 1. The verdict was contrary to the weight of the evidence.

 2. The testimony offered by the plaintiff is inconsistent with the verdict since it clearly shows that the plaintiff was guilty of contributory negligence.

 This is the second time said case has been before this Court. Originally in the trial of the proceeding before another member of this Court, a directed verdict was entered in favor of the defendants and a new trial refused. 51 S.Supp. 71.

 An appeal was taken to the Circuit Court by the plaintiff and the judgment of the District Court was reversed. It was held that under the testimony the question of the defendants' negligence was for a jury's consideration. Under proper instructions from the Court the case was, therefore, remanded to the District Court for further proceedings not inconsistent therewith. 3 Cir., 141 F.2d 168.

 In accordance with the mandate of the Circuit Court the case proceeded to trial with a jury. The questions of negligence and contributory negligence were presented to the jury for consideration, a verdict having been rendered in favor of the plaintiff against the defendants in the amount of $ 10,000, for which judgment was duly entered.

 The collision occurred on the Pennsylvania Turnpike on December 28, 1941, at about 5:45 P.M. The Turnpike is a 'super highway,' having four lanes of traffic; two east-bound and two west-bound, separated by a wide strip or grass plot. The portion of the highway with which we are concerned is straight and level. Both vehicles involved in the accident were proceeding on the east-bound lanes or in the direction of Harrisburg, Pennsylvania. The plaintiff's car was being driven to the rear of the truck. The plaintiff passed the truck. She was then overtaken and passed by the truck, and subsequently the plaintiff decided to pass the truck again. Both vehicles were traveling about 50 M.P.H., and the plaintiff increased her speed slightly and pulled out in the left lane to pass, blowing her horn several times to make sure that the truck driver would hear her. As she came alongside, about the middle of the truck, the driver of the truck increased its speed to over 60 M.P.H. The plaintiff increased her speed accordingly in order to proceed with the passing of the truck. The truck was being driven a little to the left of the center of the east-bound highway and the driver did not deviate but continued straight ahead as the plaintiff started to pass. The plaintiff believed the driver of the truck would either cut down his speed after she had blown her horn, continue straight in the direction in which he was driving, or drive the truck to the right. The plaintiff passed the cab of the truck and was proceeding perfectly straight with sufficient room on the highway to complete the passing without any trouble or difficulty when the driver of the truck swerved the motor vehicle to the left and struck the right rear of the motor vehicle, causing the accident and resulting injuries.

 In the cross-examination of plaintiff in the first trial, plaintiff testified that when she reached the point near the cab of the truck, and without changing her direction in any way, she felt a crash at the right rear of her car, the cause of which, however, was not known by her. During the first trial she also called a witness who was an occupant in the truck, who testified that the car of the plaintiff began to swerve to the right, that the truck was at no time turned to the left and that the accident was, therefore, caused by the act of the plaintiff.

 During the second trial, the plaintiff did not call the witness to which I have just made reference, and the only testimony as to the cause of the accident presented on plaintiff's behalf was that offered by said plaintiff. The plaintiff unequivocally in one part of her testimony stated that sufficient room existed on the highway in the direction in which she was driving to pass the truck, that the accident was caused by the failure of the driver of the truck to reduce the speed, and in fact he increased his speed, and by suddenly swerving the truck to the left, it caused the truck to strike the right rear of the automobile.

 Here, the defendant's driver, according to the evidence, and inferences therefrom favorable to the plaintiff, breached the statutory duty owed to the plaintiff by (1) increasing his speed and (2) not keeping his vehicle to the right side of the road, when the plaintiff sought to pass after having given the required signal. A jury could well find, if it believed the plaintiff's testimony, that the failure to observe the statutory standard of care was the legal cause of the collision. Furthermore, even apart from the statute, there is sufficient evidence for a jury to find that the conduct of defendant's driver was negligent with respect to the plaintiff. If the plaintiff's story is accepted, the inference that the truck veered from the right to the left and struck the plaintiff's car is entirely reasonable as is the conclusion that the driver was negligent in doing so.

 The defendant contends that under the weight of the evidence and under the testimony offered by the plaintiff, it is clearly established that the plaintiff was guilty of contributory negligence. It is a settled rule of law that one who voluntarily and unnecessarily assumes a position of known danger, and by reason of this is injured, is contributorily negligent as a matter of law. Furthermore one is guilty of contributory negligence who rejects a safe way and voluntarily chooses one known to be dangerous. Valente, Appellant, v. Lindner, 340 Pa. 508, 17 A.2d 371; Glancy, Appellant, v. Meadville Bread Co., 340 Pa. 452, 17 A.2d 395; Starovetsky v. Pennsylvania R. Co., 328 Pa. 583, 195 A. 871.

 It has also been definitely recognized as a sound rule of law that contributory negligence can only be declared as a matter of law where it is so clear that there is no room for fair and reasonable persons to disagree. ...

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