Kim Darragh, Pittsburgh, for appellant
Edward O. Spotts, Jr., and Irving Sikov, Pittsburgh, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 223]
This is an action of trespass to recover for injuries sustained by Jean E. Barker and her minor daughter, Bonnie Jean, while riding as guests and passengers in a car owned and operated by the defendant. The accident happened when the defendant, after backing her car into the road, attempted to go forward, and so operated the vehicle that it came into contact with a post of the guard rail of that road. As a result of the collision of vehicle and guard rail the Barkers, who were riding in the back seat of the car, were thrown forward and suffered personal injuries. After trial, the jury awarded a verdict of $500.00 to Jean E. Barker, plaintiff; a verdict of $1,000.00 to Thomas C. Barker, her husband; and nothing to Bonnie Jean Barker, minor plaintiff. Defendant moved for judgment n. o. v., and plaintiff moved for a new trial. The court below refused the motion for judgment n. o. v., and granted the plaintiffs' motion for a new trial because of inadequacy
[ 167 Pa. Super. Page 224]
of the verdict. The defendant took this appeal from the refusal of his motion and the granting of the plaintiffs'.
Some years before the accident involved in this case, the defendant had a driver's license issued by the Commonwealth but had allowed it to lapse in 1928. At the time of this accident, November 6, 1947, she was operating her automobile on a learner's permit, having failed three times during the preceding few weeks to pass an examination to secure a driver's license. It was known to the passengers in the car that the defendant had failed to pass the formal examination required for the issuance of a driver's license but Mrs. Barker testified that she did not know 'why she had failed her test'.
In support of her motion for judgment n. o. v., the defendant contends that because the passengers in the car rode with a driver who, to their knowledge, had failed to secure a driver's license, they are barred from recovery. In other words, that they knew or should have known, that she was an incompetent driver.
In Lloyd v. Noakes, 96 Pa. Super. 164, at page 167, we stated: 'The purpose of requiring a license is to secure competent drivers; failure to obtain a license is not conclusive of incompetence, * * * though it is some evidence to go the the jury with other evidence on the same subject if the inquiry is whether the driver was competent or not.' Cf. Chamberlain v. Riddle, 155 Pa. Super. 507, 38 A.2d 521.
In this case, aside from the fact that the defendant had failed to pass the various examinations, there is nothing in the record from which a jury could infer that she was an incompetent driver and known to be such by the passengers in her car. On ...