the court reporter might have made an error in transcribing the notes of testimony (N.T. 126).
(b) The trial judge emphasized (1) that his reference to this testimony was to point out the possible inaccuracies which can result when people are testifying to events which occurred several years before the trial,
and (2) that plaintiff's counsel believed his client's testimony was that the car was facing the other way.
Under these circumstances, this motion will be denied.
II. Defendant's Motion for Judgment on the Record
This motion must be granted since the Pennsylvania cases hold that the plaintiff is contributorily negligent as a matter of law.
The plaintiff, a licensed driver of motor vehicles (N.T. 22), testified that he was on the front seat beside Mr. Shipley as the latter drove, immediately prior to the collision, west past the airport in, or just after, rain (N.T. 23) for a distance of two miles at 30 or 35 miles an hour in very misty
weather which only permitted the headlights of the Shipley car to shine five or ten feet ahead (N.T. 29-30). He first saw the Fritz car when it was five or ten feet ahead of him (N.T. 28-9). The Pennsylvania appellate courts have consistently held that when danger arising out of the operation of a motor vehicle is manifest to a passenger, if he sits without protest and permits himself to be driven to his injury, his negligence in joining with the driver to test the manifest danger bars his recovery. See Hardie v. Barrett, 1917, 257 Pa. 42, 101 A. 75, L.R.A.1917F, 444; Little v. Four Wheel Drive Sales Co., 1935, 319 Pa. 409, 413-414, 179 A. 550; Ellenberger v. Kramer, 1936, 322 Pa. 589, 186 A. 809; Apfelbaum v. Markley, 1938, 134 Pa.Super. 392, 3 A.2d 975. In this case, plaintiff (a licensed driver) was certainly testing a manifest danger when he permitted himself to be driven at 30-35 miles per hour when the visibility ahead was only 10 to 20 feet. Since he permitted this negligent driving to continue for at least two miles, he clearly had an opportunity to tell Mr. Shipley to slow down or let him get out of the car.
Under these facts, such language as the following from the Apfelbaum case, supra, 134 Pa.Super. at pages 396-397, 3 A.2d at page 976, would seem controlling:
'Under the husband plaintiff's own admissions the accident did not occur in a sudden emergency but as a result of negligence which had continued for a considerable period. He did not complain of the defendant's fast driving when the danger was obvious to him; on the contrary, he willingly joined the driver in testing the danger. He is responsible for the consequences of his own act. 'The rule is well established that, when possible dangers, arising out of the negligent operation of a hired vehicle or a conveyance in which one is riding as an invited guest, are manifest to a passenger, who has any adequate opportunity to control the situation, if he sits by without protest and permits himself to be driven on to his injury, this is negligence which will bar recovery. In other words, the negligence of the driver is not imputed to the passenger, but the latter is fixed with his own negligence when he joins the former in testing manifest dangers (citing numerous cases)' * * *.'
And now, April 30, 1957, it is ordered that plaintiff's motion for new trial is denied and that the motion of defendant, Frederick Fritz, for judgment on the record is granted.