Appeals, Nos. 60 and 61, March T., 1957, from judgments of Court of Common Pleas of Mercer County, Sept. T., 1954, Nos. 208 and 209, in cases of Millard F. Crane v. Fred A. Neal and Leslie H. Dean v. Fred A. Neal. Judgments reversed; reargument refused June 25, 1957.
George Hardy Rowley, with him Voorhies, Dilley, Keck & Rowley, for appellant.
George S. Goldstein, with him Martin E. Cusick, Donald R. McKay and Wiesen, Cusick, Madden, Joyce, Acker & McKay, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Crane and Dean sued Neal in separate actions of trespass to recover damages for personal injuries and property damage. Neal sued Crane and Dean in trespass to recover damages for personal injuries and property damage. All the cases were tried together.
Around two o'clock a.m. on March 20, 1954, Crane and Dean were each riding a motorcycle in a westerly direction on Route 358 and were approaching the Borough of Greenville. The night was dark and it was raining. The engine of Crane's motorcycle stopped so Crane and Dean parked their motorcycles on the paved portion of the highway (because the berm was muddy) while they worked on Crane's machine. While working on Crane's machine Crane and Dean were struck by a westbound automobile driven by Neal. Neal testified he was driving approximately 40 miles an hour when he was temporarily blinded by the lights of an eastbound automobile. He slowed his car to about 35 miles an hour. As the eastbound car passed him he saw the motorcycles on the highway in front of him about 100 feet away. One of the motorcycles was parallel with the edge of the pavement; the other one was angled between it in such a way as to occupy all but one foot of the westbound lane. The paved portion of the highway was approximately 22 feet wide. Neal attempted to turn to his left but the rear of his car swung around and slid sideways and struck both motorcycles. His car came to rest against a culvert on the south side of the road 30 or 40 feet from the point of collision. Neither Crane nor Dean saw Neal's car until after it had struck them, nor did they see any eastbound traffic prior to the accident.
Crane and Dean testified that while their motorcycles were on the paved portion of the highway, Crane's motorcycle was only a few inches from its north
edge and Dean's motorcycle was parked parallel with it so as to leave an unobstructed space of approximately 8 feet in the west bound lane. Crane and Dean testified, we repeat, that they did not move their motorcycles off the paved portion of the highway because the berms were muddy, although there was a slag driveway in the immediate vicinity which after crossing a muddy berm was in good condition.
The Court below entered a non-suit against Neal in his actions against Crane and against Dean. The jury returned a verdict in favor of Crane against Neal in the amount of $3,000, and in favor of Dean against Neal in the amount of $12,000, and from the judgments entered thereon Neal took these appeals.
The narrow but important question which Neal raises is whether a new trial should be granted in the suit of Crane against Neal and of Dean against Neal because of the alleged errors in the trial Judge's charge on the subject of contributory negligence. The importance of the question of contributory negligence in these cases is obvious from the above recital of the pertinent facts. The trial Judge charged the jury that "the contributory negligence of a party ... must be a proximate cause*fn1 of the incident involved ... the term, proximate cause, ... means a moving or efficient cause, without which the injury would not have occurred. It is an act or an omission which becomes a proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question, and one which ought to have been ...