Appeal, No. 115, Jan. T., 1953, from order of Court of Common Pleas of Schuylkill County, July T., 1948, No. 10, in case of Raymond Arner et ux., v. Andrew Sokol. Order reversed.
A. W. McMichael, with him Guy A. Bowe, Jr., for appellants.
D. J. Boyle, with him John T. Pfeiffer, III, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On February 17, 1947, at the intersection of Legislative Route No. 13006 and Route No. 443 in Normal Square, Carbon County, an automobile owned and operated
by the defendant, Andrew Sokol, came into collision with an automobile owned by the plaintiff Raymond Arner and operated by the wife-plaintiff Mary E. Arner. In their suit in trespass against Andrew Sokol, the Arners filed a complaint which averred that on the day in question, "after ascertaining that there were no vehicles travelling east or west on said Route No. 443, the Plaintiff, Mary E. Arner, entered said intersection, still travelling in a southwardly direction." She "continued to look as she passed over said Route No. 443 on her right or lawful side." Paragraph No. 12 declared that the defendant "made a left turn entering Legislative Route No. 13006 and was then travelling in a southwardly direction." The next 2 paragraphs read: "13. At the time and place aforesaid the Defendant drove his Chrysler automobile into the left rear of the automobile driven by the Plaintiff, Mary E. Arner, after she had completely crossed over said intersection. 14. As a result of said collision the car driven by the Plaintiff was knocked off the road to her right and over a culvert."
When the case came on for trial, the wife-plaintiff (the husband having died on October 11, 1949) offered to prove the averments in the Complaint but the defendant objected to the introduction of substantiating evidence, contending that the averments and the offer of proof did not make out a cause of negligence. The Court sustained the objection. The plaintiff then offered to amend the Complaint by adding: "'That the accident was caused solely by the negligence of the Defendant, which negligence consisted in the following: 1. That Defendant was driving his car at a speed in excess of fifty miles per hour. 2. That Defendant was driving his car on the wrong or unlawful side of the highway. 3. That Defendant did not have his car under proper control so that he could stop in a safe and assured distance ahead.'"
The court sustained the defendant's objection to the amendment and entered a compulsory non-suit. The subsequent refusal of the court en banc to lift the non-suit has brought the case to this Court on appeal.
Although the plaintiffs' statement of claim was far from vivid in its description of the accident involved and was singularly devoid of the usual deprecatory charges of law violations levelled against the defendant in superlative and repetitive language, we cannot agree with the lower court that it did not "sufficiently describe, picture or visualize what actually happened." A careful reading of the Complaint reproduces in mental motion pictures the wife-plaintiff cautiously approaching a street intersection, looking to the right and left; and then, being assured of the absence of vehicles moving east or west on the transverse street, committing herself to the intersection; continuing to maintain a lookout for other vehicles as she guardedly negotiates the crossing; and after she has reached the other side of the crossing where she has the right to assume she is safe, the defendant suddenly appears, makes a left turn into her lane of traffic, and drives his Chrysler automobile into the left rear of her car. That the defendant's car was not travelling at a speed of safety required by the circumstances is evidenced by the violence with which he struck the plaintiff's automobile which "was knocked off the road to her [the plaintiff's] right ...