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April 30, 1957

Frederick FRITZ and Robert W. Shipley, Jr

The opinion of the court was delivered by: DUSEN

This case involves post-trial motions filed after a jury returned a verdict in favor of one driver (Fritz) and against the other driver (Shipley), whose passenger was the plaintiff, of two automobiles which collided on a four-lane highway about two miles west of the Philadelphia International Airport. The cars were proceeding in opposite directions on the traffic lanes nearest a medial divider strip prior to the collision. The verdict of the jury makes clear that Fritz' testimony, that the Shipley car went over into Fritz' eastbound lane at a break in the divider strip and hit the Fritz car, was accepted by the jury. *fn1"

I. Plaintiff's Motion for New Trial of His Claim Against Fritz

 Plaintiff objects to the portion of the court's charge on circumstantial evidence and to the court's failure to comply with his request after the charge to instruct the jury that they should not indulge in arbitrary deductions from physical law and facts. *fn2"

  The language contained in the lower court opinion in Satovich v. Lee, 1956, 385 Pa. 133, 122 A.2d 212, which is relied on by plaintiff, refers to a situation where the only evidence of the occurrence of the accident is circumstantial. *fn3" For example, the court used this language, 122 A.2d at page 215:

 'Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eye-witness testimony, but where the circumstantial evidence is offered because direct proof is not available it must provide as the only reasonable inference the conclusion that the accident was caused by the negligence of the defendant. * * *

 '* * * negligence is not proved by circumstances that are merely consistent with its existence * * *.' (Emphasis supplied.)

 In this case, the jury had the benefit of the testimony of one driver and of a passenger (plaintiff) in the other car, so that much of the language of the Satovich case, supra, is inapplicable. Also, in this case, all the debris was two or three feet south from the center line in Mr. Fritz' eastbound lane of traffic (N.T. 38), whereas in the Satovich case, supra, the debris was 'on both sides of the line', at page 213 of 122 A.2d. The charge emphasized that this debris, although three feet south of the center line, 'was very close to the middle point of the highway.' (N.T. 124.) When this language is read with the portion of the charge on circumstantial evidence, *fn4" the charge does not contain reversible error. *fn5"

 Plaintiff's objection to the trial judge's reference to plaintiff's testimony on the position of the cars prior to the collision is also no ground for a new trial, particularly in view of the language of F.R.Civ.P. 61. Plaintiff's testimony seems clear to the trial judge that the Fritz car was 'facing in a northwesterly direction' prior to the collision (N.T. 8). *fn6" Furthermore, this statement in the charge could not have prejudiced plaintiff for these reasons, among others:

 (a) The trial judge emphasized in his charge on at least four occasions that it was the jury's memory of the testimony, not his, which controlled *fn7" and even that 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, *fn8" and (2) that plaintiff's counsel believed his client's testimony was that the car was facing the other way. *fn9"

 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 *fn10" 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. *fn11" 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.

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