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July 2, 1959


Appeals, Nos. 129 and 130, Jan. T., 1959, from judgments of Court of Common Pleas of Schuylkill County, July T., 1952, No. 80, in cases of Joseph Downey et al. v. John Rymorowicz; and Joseph Downey v. John Rymorowicz et al. Judgments reversed; reargument refused September 18, 1959. Trespass for personal injuries and property damage. Before CURRAN, J. Verdicts for plaintiffs; defendant's motion for new trial and judgments n.o.v. dismissed and judgments entered on the verdicts. Defendant appealed.


H. G. Stutzman, with him James P. Bohorad, and Stutzman, Lewis and Sidoriak, and Houck, Bohorad and Lipkin, for appellant.

Fred C. Pace, with him Noonan & Pace, for appellees.

Before Jones, C.j., Bell, Jones, Cohen and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 207]


Joseph Downey and John Zemlavage suffered injuries in a collision of two motor vehicles, one operated by Zemlavage and owned by Downey; the other owned and operated by John Rymorowicz. By stipulation of counsel the action instituted by the plaintiffs was severed and Zemlavage was made an additional defendant by appropriate proceedings. At the trial the following verdict was rendered:

1. In favor of the plaintiff Downey and against the original defendant Rymorowicz in the sum of $7,000 and in favor of the plaintiff Zemlavage and against the original defendant Rymorowicz in the sum of $100.

2. In favor of the plaintiff Downey and against the original defendant Rymorowicz in the sum of $7,000.*fn1

Judgments were entered on the verdicts and defendant appealed.

We need consider only the contention that Rymorowicz is entitled to judgment n.o.v. In doing so we shall view the testimony in the light most advantageous to plaintiffs, giving to them the benefit of every inference that might reasonably be deduced from the evidence and resolving all conflicts in their favor. Koehler v. Schwartz, 382 Pa. 352, 115 A.2d 155; Beatty v. Hoff, 382 Pa. 173, 114 A.2d 173.

When so considered the facts of the case are these:

The accident happened in broad daylight, about 4:15 p.m. on May 10, 1952, about 3 miles east of the borough of Mahanoy City. The highway is a 2 lane macadam road, 18 feet in width with a 2 to 3 feet berm on each side and running in a generally east-west direction.

Before the accident the three principals had been together in a cafe 2 or 3 miles east of the place of

[ 397 Pa. Page 208]

    collision. They agreed to meet in another cafe in Mahanoy City. Downey and Zemlavage left the cafe, got into Downey's car with Zemlavage driving, and proceeded westwardly on Route 45 toward Mahanoy City. Rymorowicz followed in his own car. According to the testimony of both Downey*fn2 and Zemlavage*fn3 they were travelling at about 40 miles per hour. As their car reached a point 30 feet east of the railroad crossing Rymorowicz proceeded to pass them on their left, crossed the railroad and then instead of returning to the right or westbound lane continued westwardly on the eastbound lane with one or both of his left wheels off the improved portion of the highway and on the

[ 397 Pa. Page 209]

    berm of the road, "bucking" for a distance of 125 feet where it struck a utility pole and came to a stop.

Plaintiffs testified that as Rymorowicz passed them they saw a motor vehicle approaching from the west in the eastbound lane at about 65 miles an hour. Downey says that this oncoming vehicle was 250 feet away when he first saw it (see R. 132a) and Zemlavage says he could see it from a point 700 feet away (see R. 340a, 341a). When Zemlavage observed the Rymorowicz vehicle "bouncing and bucking along" the edge of the left lane he continued in his own right or westbound lane while the oncoming eastbound vehicle continued speeding toward them. When Rymorowicz's car struck the utility pole it extended in a southwest direction with its front end off the improved portion of the highway and its rear protruding and partially blocking the eastbound lane of travel. According to the plaintiffs they continued their westward path following Rymorowicz by 2 or 3 car lengths at the same rate of speed, i.e., 35 to 40 miles per hour.*fn4 They observed the erratic behavior of the Rymorowicz car and its subsequent collision with the utility pole and the third vehicle approaching at a speed of 65 to 70 miles per hour, without stopping, pulling off on the berm, or even without decreasing speed. Plaintiffs' vehicle continued to occupy its right or westbound lane following Rymorowicz's when Zemlavage observed the eastbound car swerve from his right-hand lane to the westbound lane then occupied by plaintiffs' vehicle. In spite of the obvious danger Zemlavage pulled over to his left side and endeavored to steer the vehicle between the Rymorowicz

[ 397 Pa. Page 210]

    car and the speeding eastbound vehicle. The left front of plaintiffs' car struck the right rear of the Rymorowicz car, then continued westwardly, out of control, and struck another utility pole farther up the highway. According to these facts the contributory negligence of Zemlavage, the driver, is obvious. No other inference is reasonable.

As we said in Malitovsky v. Harshaw Chemical Co., 360 Pa. 279, 283, 61 A.2d 846: "Ordinarily, the question of contributory negligence is for the jury. It is only in those cases where contributory negligence is so clearly revealed that fair and reasonable individuals would not disagree as to its existence that it may be declared judicially."

This is just such a clear case. When Zemlavage saw Rymorowicz pass him to his left and he observed the vehicle obviously out of control travelling westwardly on the eastbound lane of the highway, with a speeding car approaching from the west, impending disaster was plainly foreseeable to any reasonable man.

This Court said in Nark v. Horton Motor Lines, Inc., 331 Pa. 550, 553, 1 A.2d 655: "No man has a right to continue his car or truck in motion if such motion makes an injury to another car or to any person inevitable or reasonably probable, provided, of course, such car or truck is 'under control,' ..."

The duty of the driver of a motor vehicle to have his car under control at all times means having it under such control that it can be stopped before doing injury to any person in any situation that is reasonably likely to arise under the circumstances. Galliano v. East Penn Electric Co., 303 Pa. 498, 154 Atl. 805.

A prudent operator in this situation would have stopped immediately or driven off on the berm to a place of evident safety. Had Zemlavage made an attempt to do either of these things then the question of his negligence would properly have been submitted to

[ 397 Pa. Page 211]

    the jury. However, he elected to pursue a course manifestly dangerous and his injuries and those of plaintiff Downey were the direct result of that careless conduct.*fn5

The court below evidently based its refusal to grant defendant's motion for judgment n.o.v. on the theory that plaintiff Zemlavage was faced with an emergency or sudden peril. However, the court failed to take into consideration that if the emergency itself could have been avoided by the exercise of reasonable care then that doctrine cannot be invoked. Nark v. Horton Motor Lines, Inc., 331 Pa. 550, 1 A.2d 655; Stern v. Passaro, 326 Pa. 187, 190 Atl. 881. The emergency which the lower court is speaking of, i.e., when Zemlavage tried to go between Rymorowicz's vehicle and

[ 397 Pa. Page 212]

    the oncoming vehicle from the west, was an emergency of his own creation. Had Zemlavage stopped or driven the motor vehicle off the highway, there would have been no such emergency.

Plaintiff Downey is in no better position than Zemlavage for he is the owner-passenger and is admittedly on a joint enterprise with the operator. The negligence of the operator is therefore imputable to him so as to bar any recovery on his part from the third party. Beam v. Pittsburgh Railway Co., 366 Pa. 360, 77 A.2d 634; Johnson v. Hetrick, 300 Pa. 225, 150 Atl. 477.


Judgments reversed and here entered for defendant.

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