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RAY v. MANCULICH (01/11/50)

January 11, 1950

RAY
v.
MANCULICH, APPELLANT, ET AL.



Appeals, Nos. 159 and 160, March T., 1949, from judgments of Court of Common Pleas of Allegheny County, July T., 1947, No. 986, and April T., 1947, No. 1414, in cases of Charles H. Ray v. Alex Manculich, trading as Sanitary Transfer Company et al., and George Devlin v. Alex Manculich, trading as Sanitary Transfer Company. Judgment reversed.

COUNSEL

Sanford M. Chilcote, with him Dickie, Robinson & McCamey, for appellant.

William D. Hilldorfer, for appellees.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Stearne

[ 363 Pa. Page 446]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

These are appeals by defendant from the refusal of motions for judgment non obstante veredicto.

George Devlin was the owner and operator of an automobile. In the early morning around two o'clock, Devlin, with Charles H. Ray as a guest passenger, was returning to Pittsburgh from the Elks Club in Donora. He was driving on state highway number 88, a paved and well travelled highway twenty feet wide. He was driving through dense fog with poor visibility. After stopping at a restaurant in Monongahela for a meal plaintiffs proceeded to a point near Mineral Beach. The hour was between 4.30 and 5 o'clock a. m. At the suggestion of Ray, Devlin stopped his car because of the increased density of the fog and the poor visibility. Devlin and Ray remained seated in the car from twenty minutes to a half hour. While the car was thus stopped, or parked, a truck operated by an employe of defendant, Alex Manculich, travelling the highway in the same direction, crashed into the rear of Devlin's automobile, damaging it and injuring both plaintiffs. In the suit of Ray (the guest passenger), Devlin (owner and operator of the car) was joined as an additional defendant. The jury rendered verdicts for both plaintiffs against defendant Manculich, and in the Ray suit, in favor of the additional defendant Devlin. Defendant neither seeks nor desires a new trial. He relies solely upon his motions for judgment n.o.v. The appeal presents the question: were plaintiffs guilty of contributory negligence as matter of law?

Where evidence of plaintiff's knowledge of danger is conflicting, the question of his contributory negligence is ordinarily one of fact for the jury. But where

[ 363 Pa. Page 447]

    plaintiff's own evidence clearly shows contributory negligence, it becomes matter of law for the court to declare, Shoffner v. Schmerin, 316 Pa. 323, 175 A. 516; Lauerman et al. v. Strickler, 141 Pa. Superior Ct. 240, 14 A.2d 608. In the Lauerman case defendant's car was standing in the road in a dense fog. Plaintiff drove his car into defendant's automobile. His speed was too great to enable him to stop within the assured clear distance ahead. Judgment was entered for defendant n.o.v. In the Shoffner case, plaintiff drove his car into and through a fog bank. He saw defendant's truck moving slowly ahead of him. Plaintiff was unable to stop in order to avoid a collision. A verdict for plaintiff was reversed and judgment entered for defendant n.o.v. In the case now before us it was the plaintiffs who were seated in the parked car and it was defendant's truck which collided with plaintiff's automobile. Precisely the same principles of law apply. The issue is whether plaintiffs' alleged contributory negligence, in the circumstances, is matter of fact for the jury or matter of law for the court.

Mr. Chief Justice MAXEY, in Shoffner v. Schmerin, supra, said, p. 326: "For a truck to proceed, on the proper side of the highway, through a fog bank at a cautious rate of speed or even to stand still there in a proper position for a reasonable length of time for any legitimate reason is not in itself negligence." (Latter emphasis supplied.)

The scope of the inquiry, therefore, as matter of fact or law, is whether plaintiff's automobile was standing in a proper place or position, for a reasonable ...


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