Appeals, Nos. 122 and 123, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1947, No. 851, in case of Mary R. Beam, Admrx., Estate of Frank I. Beam, Deceased v. Pittsburgh Railways Company, et al. Judgment against defendant Shook affirmed; judgment against Pittsburgh Railways Company reversed; reargument refused January 24, 1951.
D. H. McConnell, for appellants.
Edward O. Spotts, Jr., for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
In order to determine the issue here presented as to plaintiff's right of recovery it will be helpful to make an extended review of the authorities in regard to the question whether the owner of an automobile who is seated therein and who has entrusted the operation of his car to a companion may recover damages for injuries sustained by him by reason of the negligence of a third person if the driver of his own car has also by his negligence contributed to the happening of the accident, -- in other words, whether the contributory negligence of the driver is imputable, under such circumstances, to the occupant-owner of the car.
One John F. Shook, aged 27, had known the decedent, Frank I. Beam, aged 42, for about six months, when on December 5, 1946, at about seven o'clock in the evening, he met him by chance in an inn. After staying there together for about a half hour they left in an automobile owned by Beam. When Shook was asked at the trial: "How did it happen that you left the Ro-Val Inn with Mr. Beam?" he replied: "Mr. Beam asked me to go with him." Beam drove the car to the Union Bar where they stayed for another half hour; then they walked from there, a distance of about a half block, to the Moose Club and remained there also for about a half hour. From there they went in Beam's car, Beam driving, about four blocks away, the Segreti's Bar, when they remained for about two or three hours. These places were all in Sharpsburg. From Segreti's Bar they started home in the car. Beam lived in the 5300 block of Keystone Street, Pittsburgh, and Shook in the 5200 block of Butler Street, a block away. It was then between eleven and twelve o'clock. They came up the main street in Sharpsburg, over the 62nd Street bridge, and turned off the bridge down Butler Street,
inbound toward 61st Street. They were following an inbound trolley car of the Pittsburgh Railways Company and were going at a rapid rate of speed; coming up toward the rear of that car they swerved to the left of it and on to the outbound track. An outbound trolley car, running at a speed of from 40 to 45 miles an hour, was then from 100 to 150 feet distant; both it and the automobile continued on toward one another; there was testimony to the effect that the motorman did not apply his brakes until within 30 to 35 feet of the automobile. The two vehicles met in a head-on collision with a terrific crash. Beam was killed and Shook was badly injured. Beam's widow, administratrix of his estate, brought suit to recover damages under the Survival and Wrongful Death Acts against Shook and Pittsburgh Railways Company on the theory that their concurrent negligence had caused the accident, and she obtained verdicts aggregating $25,000 against both of them. Pittsburgh Railways Company filed motions for a new trial and for judgment n.o.v., both of which were overruled and judgments were entered on the verdicts, from which judgments Pittsburgh Railways Company now appeals.
Who was driving Beam's automobile at the time of the accident? The plaintiff asserted that Shook was the driver. Shook denied this; he insisted that Beam was driving the car just as he had driven it from the Ro-Val Inn to the Union Bar and from the Moose Club to Segreti's Bar. Witnesses testified, however, they when they came to the automobile after the crash they found both Shook and Beam in the front seat, Shook unconscious, slumped over the steering wheel on the left, and Beam seated on the right with his head down on the dashboard. Beam died almost immediately thereafter.
The court submitted to the jury an interrogatory:
"Was John F. Shook the driver of the automobile which was involved in the accident?" The answer of the jury was "Yes". That being so, plaintiff's right of recovery against Shook cannot be questioned, because, whatever may have been their legal relation or status as between themselves, if Shook was negligent in the operation of the car plaintiff is entitled to recover from him: Johnson v. Hetrick, Administratrix, 300 Pa. 225, 232, 150 A. 477, 479; Perry v. Hyback, 302 Pa. 559, 564, 153 A. 770, 771; Denton v. Michel's Bakery Co., 363 Pa. 502, 504, 70 A.2d 284, 285; Hopshire v. Yesenosky, 157 Pa. Superior Ct. 545, 547, 43 A.2d 351, 352. That Shook was negligent is obvious, turning as he did, at high speed, into the outbound track and into the path of a rapidly approaching car. That the motorman of the Pittsburgh Railways Company was also negligent would seem equally obvious if we are to accept, as we must, the testimony most favorable to the plaintiff that the motorman had the oncoming automobile in full sight at a distance of 100 to 150 feet, but nevertheless made no attempt to put on his brakes and stop his car until within 30 to 35 feet. Since, however, the plaintiff claims, and the verdict establishes, that Shook was concurrently negligent, -- that is to say, by his contributory negligence helped to bring about the accident and thereby to cause Beam's death, the question arises whether that negligence on the part of Shook was legally imputable to Beam so as to bar the latter's recovery from the Pittsburgh Railways Company. Where ...