Richard P. Brown, Jr., Henry R. Heebner, Morgan, Lewis & Bockius, Philadelphia, for appellant.
George W. Alexander, Jr., Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 59]
Early in the evening of January 19, 1949, plaintiffs were riding in an automobile owned by plaintiff Santore, and driven by plaintiff Attilio Marino, when it collided with a locomotive owned and operated by defendant, Reading Company. An action in trespass was brought against defendant-company in which Santore claimed damages for injuries to his person and his property, while plaintiffs Attilio and Joseph Marino each claimed damages for personal injuries arising out of the accident. At the conclusion of its case defendant presented a point for binding instructions as to each plaintiff, which was refused; the court permitted the issues of defendant's negligence, the driver's contributory negligence, and the existence of a bailment of the automobile by the plaintiff-owner to the plaintiff-driver to be decided by the jury. The jury returned a verdict for defendant as to the driver, Attilio Marino, a verdict in the sum of $2,500 for the owner, Santore, and a verdict for Joseph Marino in the sum of $100.
Defendant filed a motion for judgment n. o. v. as to the plaintiff-owner but had judgment entered on the verdict as to the plaintiff-driver. This appeal followed the court's dismissal of defendant's motion.
The basic question was recently before the Supreme Court in Beam v. Pittsburgh Railways Co., 366 Pa. 360, 362,
[ 170 Pa. Super. Page 6077]
A.2d 634, 635 viz.: '* * * 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*fn1 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.'
However, before taking up that question, we must first consider a procedural question raised in this appeal. Defendant's point for binding instructions was phrased in general terms as follows: 'Under all the evidence the verdict as to each plaintiff must be for the defendant.' It has repeatedly been held that a court cannot enter judgment n. o. v. except in a case where, at the close of the trial, binding instructions would have been proper. Maiden v. Philadelphia Transportation Co., 163 Pa. Super. 189, 60 A.2d 409; Stierheim v. Bechtold, 158 Pa. Super. 107, 43 A.2d 916; 6 Standard Pa.Prac., ch. 27, p. 404, note 17. It would have been improper for the judge at the close of the trial of this case to affirm the broad point submitted by defendant if the driver's contributory negligence was properly a jury question. Therefore, though the jury's verdict may be construed as establishing the contributory negligence of the driver, and though that negligence should as a matter of law, under the circumstances, be imputed to the owner of the car, judgment n. o. v. cannot be entered here for defendant as against the owner unless the driver's negligence was likewise clear as a matter of law.
[ 170 Pa. Super. Page 61]
However, it is argued that whether the driver was contributorily negligent as a matter of law is not before this Court for review inasmuch as defendant entered judgment on the verdict and failed to file a motion for judgment n. o. v. as to him, thereby admitting, it is contended, that the question of his contributory negligence was properly for jury determination. We do not accede to that argument for two reasons. First, to move for judgment n. o. v. as to the owner-plaintiff based on a point for binding instructions of the type submitted by defendant in this case is to raise the question of the driver-plaintiff's contributory negligence as a matter of law by necessary implication. Second, by the Act of Legislature which governs the power of courts to enter judgment n. o. v., we are required on review of motions for such judgment to 'review the action of the court below, and enter such judgment as ...