Appeal, No. 2, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, April T., 1954, No. 2981, in case of Frances E. Giorgianni v. Ester E. DiSanzo. Judgment affirmed.
T. Robert Brennan, with him Maurice Chaitkin, Edward A. Damrau, and Brennan and Brennan, Damrau & Mohan, for appellant.
William C. Walker, with him Dickie, McCamey, Chilcote & Robinson, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY:
In this action in trespass there was a jury verdict for the defendant. Following denial of plaintiff's motion for a new trial, judgment was entered on the verdict, and plaintiff has appealed therefrom, assigning error in the court's charge to the jury.
The plaintiff, Miss Giorgianni, a Miss Garbin and a Miss Zajackowski, young women residing in and employed in the City of Pittsburgh, arranged with the defendant, Miss DiSanzo,*fn1 who resided in the Borough of Freedom, Beaver County, to spend the week-end together. The first three mentioned members of the party left Pittsburgh by train at about 7:30 P.M. on Saturday evening, October 24, 1953 and arrived about an hour later at Rochester, Pennsylvania where they were met by the defendant, Miss DiSanzo, who owned and was operating her automobile. After stopping at
a hotel in Rochester where some of them had dinner, they drove to the Sons of Italy Club in Elwood City, arriving there about 10:45 P.M., where they danced and had some drinks and some pizza pie. They left this club at about 2:30 A.M. (October 25th) and proceeded to the Moose Club where they stayed about a half hour. Defendant, Miss DiSanzo, entered this club but after a few minutes returned to her car and listened to the radio. After leaving the Moose Club at about 3 A.M., the three members of the party joined Miss DiSanzo in her car and all proceeded toward Beaver Falls where it was their intention to spend the night at the Broadhead Hotel. The plaintiff was seated in the rear seat back of Miss DiSanzo, the driver. Miss Zajackowski sat in the rear to plaintiff's right, and Miss Garbin sat in the front seat beside the driver. On the journey to Beaver Falls their route passed through the Borough of Koppel.Before reaching Koppel they had been travelling on a curving two-lane highway. There was a car in front of them occupied by a couple, which was moving from one side of the road to the other. After crossing a toll bridge and entering Koppel they reached a four-lane paved highway, known as Fifth Avenue. There was no other traffic on the street in Koppel at that hour in the morning and the defendant drove past the car which had been in front of them, before reaching an intersecting highway known as Walnut Street. At this intersection there were two depressions in the paving extending across Fifth Avenue at approximately the curb lines of Walnut Street. These rounded depressions were apparently for drainage purposes, and there was testimony by an investigator employed by plaintiff's counsel that the bottom of each depression varied in depth from 8 inches in the middle of Fifth Avenue to 5 inches toward the boundaries of the avenue. When the car which the defendant was driving
and in which the other three persons were passengers went over each of these depressions there was a bump which caused the head of the plaintiff to strike the top of the car and, according to her testimony, she was thrown to the floor. Miss Zajackowski called to the defendant to stop, and the latter drove her car to a stop on the right-hand side of the street. Plaintiff complained of pain but resumed her seat and the car continued its journey to Beaver Falls where the party spent the remainder of the night. In the morning they attended church and in the afternoon the defendant drove the others to her home in Freedom and later took them to the train for Pittsburgh. Upon plaintiff's return to Pittsburgh X-rays revealed that she had suffered a fracture of the first lumbar vertebra, causing damages which the plaintiff sought to recover in this suit.
Appellant's contentions are: (1) that the court's charge as to negligence was inadequate; and (2) that the court emphasized and wrongfully submitted an issue of contributory negligence which did not exist. We find no merit in either contention.
As to the issue of negligence, the trial judge charged as follows: "Now, the plaintiff in this case is charging the defendant, Miss DiSanzo or Mrs. Denney, with negligence. She says that Miss DiSanzo - we'll call her that because that is what she was known to us throughout most of the case - did not operate her automobile on this occasion in as careful a manner as a reasonably, prudent person should have operated that automobile, under all of the circumstances that existed here. If Miss DiSanzo did operate her automobile as a reasonably, prudent person would have been expected to do under these circumstances, then there is no right of action here. There is no case for the plaintiff and your verdict should be for the defendant.
"We then go into the evidence to inquire as to what is the main question here, and practically the only question on liability is whether Miss DiSanzo was operating her automobile as a reasonably, prudent person would have been expected to do at this time and under all of the conditions that prevailed. That is the issue for you to determine and as I said, the charge here is that there was negligence; ...