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MAZI v. MCANLIS ET AL. (06/26/50)


June 26, 1950


Appeals, Nos. 25 and 26, March T., 1950, from judgment of Court of Common Pleas of Lawrence County, Dec. T., 1947, No. 15, in case of Tony Mazi v. W. S. McAnlis et al. Judgment affirmed.


Roy M. Jamison, with him Robert E. Jamison and Jamison & Jamison, for appellants.

Marvin D. Power, with him Michael A. Barletta and Margiotti & Casey, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stearne

[ 365 Pa. Page 115]


These appeals are by two defendants from a judgment in a trespass action following a personal injury

[ 365 Pa. Page 116]

    by automobile. It is contended that the court below erred in (1) striking off a directed verdict for defendants and granting a new trial, (2) its refusal of motions for judgment for defendant non obstante veredicto and (3) its refusal of defendants' motion for new trial.

When the case was called for trial plaintiff did not appear, although his record counsel was present and acted. The trial judge directed a verdict for defendants, to which counsel excepted. It subsequently appeared that prior to the date specially fixed for trial plaintiff had discharged his attorney. There was a misunderstanding between plaintiff and his lawyer whether the trial was to proceed as scheduled or whether it had been postponed. Counsel conferred with the judge by telephone in plaintiff's presence and plaintiff consulted the prothonotary. It is not seriously questioned that plaintiff understood that the trial had been continued, which constituted his reason for his non-appearance. Plaintiff's present counsel promptly moved for a new trial and made a motion to strike off the directed verdict. Both motions were granted by the court.

In its written opinion granting the motions the court quoted Rule 218 of the Pennsylvania Rules of Civil Procedure, which reads as follows: "When a case is called for trial, if one party is ready and the other is not, without satisfactory excuse being made known to the court, a non-suit may be entered on motion of the defendant...."

The court was of opinion, and so decided, that it was error for it to have directed a verdict for defendant instead of entering a non-suit. This is the correct interpretation of the rule. The court correctly struck off the entry of judgment. Cf. Farmers Trust Company v. Alexander, 334 Pa. 434, 6 A.2d 262; Quaker City Chocolate and Confectionery Company v. Warnock Building

[ 365 Pa. Page 117]

    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.) See Ray v. Manculich et al., 363 Pa. 445, 70 A.2d 302. It is only when plaintiff's own evidence clearly shows contributory negligence, and is so clearly revealed that fair and reasonable individuals could not disagree as to its existence, that it may be so declared as matter of law. Where the evidence is conflicting the question of contributory negligence becomes a question of fact for the jury: Cf. Altomari v. Kruger et al., 325 Pa. 235, 188 A. 828; McFadden v. Pennzoil Company, 341 Pa. 433, 19 A.2d 370; Ray v. Manculich, supra. A review of the evidence discloses that the testimony concerning plaintiff's contributory negligence was conflicting. It therefore became a question of fact for the jury. The defendant-driver's negligence, in running into a standing car is not seriously questioned. While there was a fog, and poor visibility, there was testimony that plaintiff could see 300 feet in each direction. There was also uncontradicted testimony that the visibility was "from two car lengths to 100 feet". It was testified that after plaintiff stopped his car and was wiping off his windshield, he saw the defendant-driver approaching in his car 82 feet away. It was not contributory negligence as matter of law for the plaintiff to stop his car in such fog and visibility and to stand still for a reasonable time for the purpose of cleaning his windshield. Under the present facts and circumstances defendants' negligence and plaintiff's contributory negligence became questions of fact for the jury.

The father-defendant, owner of the automobile, seeks to escape liability upon the ground that he was the owner of the vehicle and that the son-driver-defendant, while driving with his permission, nevertheless was neither the father's servant nor agent. It is the duty of

[ 365 Pa. Page 120]

    a father to educate his children. The school is seven miles distant from defendant's home. Some of the children were of tender age. When the father consented and permitted the use of the automobile by his son for the purpose of transporting the children to and from school, the son clearly was acting on behalf of the father and for the father's benefit. The question of agency was therefore for the jury: Raub v. Donn, 254 Pa. 203, 98 A. 861; Warman v. Craig, 321 Pa. 481, 184 A. 757; Hildock v. Grosso, 334 Pa. 222, 5 A.2d 565; Lambert et al. v. Polen, 346 Pa. 352, 30 A.2d 115. See also section 224 and section 238 of Restatement of Agency. The fact that the car also served the convenience of other passengers, does not relieve the father from liability: Fox v. Cahorowsky, 66 Pa. Superior Ct. 221; Irvine v. Killen, 109 Pa. Superior Ct 34, 37, 165 A. 528; Spegele v. Blumfield, 120 Ap. Superior Ct. 231, 182 A. 149.

Defendants contend that plaintiff must be declared guilty of contributory negligence as matter of law when he stopped his car on the road with the left wheels one foot or more on the paved highway, in violation of section 1019 of the Act of May 1, 1929, P.L. 905, as amended, 75 PS, section 611. This section prohibits parking "outside of a business or residence district" upon the "paved or improved or main traveled portion of such highway." "A residence district" is defined in the Act: "... when the frontage on such highway for a distance of three hundred (300) feet or more is closely built up with dwellings...." Apart from the question as to whether plaintiff was "parking" his car within the meaning of the Act, there was testimony that at the scene of the accident the area is "fairly closely built up". Whether or not there was a violation of The Vehicle Code, and if a violation, whether or not such violation was the proximate cause of the accident, are questions of fact for the jury: Bricker v. Gardner et al., 355 Pa. 35,

[ 365 Pa. Page 12148]

A.2d 209; Purol, Inc. v. Great Eastern System, Inc., 130 Pa. Superior Ct. 341, 197 A. 543.

We do not regard a verdict of $12,961.75 as grossly excessive in the facts of this case. Plaintiff suffered permanent injury in the loss of his left eye. He experienced pain and suffering and was subjected to medical and surgical expense. While to date his earnings have not been diminished, but indeed have increased, the medical testimony is to the effect that a hazard exists to the uninjured eye if plaintiff continues to work at his vocation as a welder. Because of his loss of his eye neither the United States Navy nor the United Engineering Company (his former employer) will permit him to return to them for work in his occupation. The consideration of loss of earning capacity is not solely the comparative amount of money earned before or after an injury. The true test is whether or not there is a loss of earning power, and of ability to earn money: Frysinger v. Philadelphia Rapid Transit Co., 249 Pa. 555, 559, 95 A. 257; Yeager v. Anthracite Brewing Company, 259 Pa. 123, 128, 102 A. 418; Tingle v. Curtis-Martin Newspapers, Inc., 318 Pa. 537, 540, 179 A. 80; Saganowich et al. v. Hachikian, 348 Pa. 313, 316, 35 A.2d 343.

The review of this record discloses no trial errors. The verdict of the jury and the amount of recovery are fully supported by the evidence.

Judgment affirmed.


Judgment affirmed.


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