Appeal, No. 31, Jan. T., 1961, from judgment of Court of Common Pleas of Delaware County, June T., 1959, No. 2010, in case of Joseph V. Matkevich v. Mattie Robertson et al. Judgment reversed.
E. P. Balderston, Jr., with him J. Allen Hodge, for appellant.
John J. Harding, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
This issue arises out of a collision involving an automobile owned and operated by the plaintiff, Joseph V. Matkevich, and an automobile operated by the defendant, Mattie Robertson, but owned by her father, the defendant, William Robertson. The plaintiff sued, both the driver and the owner of the Robertson automobile, to recover for personal injuries suffered and property damage to his automobile. The jury awarded the plaintiff a verdict against the owner-defendant, William Robertson, alone. The latter moved for judgment
n.o.v. or a new trial. The lower court denied both motions. From the judgment entered upon the verdict, the defendant, William Robertson, appeals.
The motion for judgment n.o.v. is devoid of merit. The question of negligence on the part of the driver of the Robertson automobile was distinctly a jury question and it was stipulated that she was the servant of William Robertson at the time of the accident.
The collision occurred on a two-way improved public street, approximately twenty-one feet wide, which was straight and level. The weather was dry and cold. The roadway was dry, but icy in spots. The automobiles involved were traveling in opposite directions. According to plaintiff's testimony, the defendant's automobile crossed the center line, came over onto the wrong side of the road, traveled in a straight course for approximately eighty-five feet, and hit the plaintiff's automobile head on. What caused it to cross over the center line, the plaintiff did not know. At the moment of impact, the plaintiff had pulled over on his own right side of the road as far as possible and was practically stopped. The testimony of Mattie Robertson was to the effect that the car she was driving skidded on a patch of ice which caused her to lose control of the vehicle, resulting in the car unintentionally veering over on the wrong side of the road.
In considering the merits of a motion for judgment n.o.v., the entire testimony must be evaluated in the light most favorable to the verdict winner: Taylor v. Mountz, 387 Pa. 321, 127 A.2d 730 (1956). This Court has held, again and again, that when an automobile is operated on the wrong side of the highway, that fact in itself is prima facie evidence of negligence and is sufficient to carry the case to the jury on that question. If it is the proximate cause of an invasion of another's interest, it will justify a jury finding the actor liable for the resultant injury: Nixon v. Chiarilli,
385 Pa. 218, 122 A.2d 710 (1956); Buchanan v. Belusko, 361 Pa. 465, 65 A.2d 386 (1949); Fisher v. Hill, 362 Pa. 286, 66 A.2d 275 (1949); Miles v. Myers, 353 Pa. 316, 45 A.2d 50 (1946). This is not the case of Richardson v. Patterson, 368 Pa. 495, 84 A.2d 342 (1951), wherein the plaintiff's own evidence showed that the other car skidded and then came over on the wrong side of the road as a result of the skidding. As that case pointed out, skidding in itself does not constitute negligence, and if the plaintiff's testimony shows the defendant's car skidded over on the wrong side of the road, then it is incumbent upon him to go further and show that the skidding was a result of negligent operation of the car. However, where, as here, the plaintiff is content to prove a collision as a result of the defendant's car being over on the wrong side of the road, the burden is upon the defendant to offer exculpatory proof. The truthfulness of defendant's explanation of why and how the Robertson car was over on the wrong side of the road was for the jury; this, together with the other testimony, was for its consideration in determining the issue of negligence. In itself, it was not automatically self exculpatory.
Unfortunately, the case must be retried. The verdict was against the owner of the automobile alone. No verdict was returned against the driver, who was the actual tortfeasor; the verdict was in effect, in her favor. Since the relationship of respondeat superior was admitted, the owner was properly found liable, if his servant were negligent. However, his liability was of necessity based solely upon this relationship and the negligence of his servant. He was not charged with an independent act of negligence, nor was such proven. Unless a cause of action existed against the servant, the master, under such circumstances, cannot be held: Pryor v. Chambersburg Oil & Gas Co., 376
Pa. 521, 103 A.2d 425 (1954); 35 Am. Jur., Master and Servant, § 476 (1941). A verdict against the employer and in favor of the employe, or vice versa, under the circumstances, is inconsistent: Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949). The jury's unwarranted action was invited by the instructions of the trial judge, who incorrectly told them, on more than one occasion, that the plaintiff could recover against the owner of the car alone and that the jury could in its discretion exculpate the driver of the automobile. This was basic, fundamental, and prejudicial error. The general exception to the charge ...