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RONDINELLI v. PITTSBURGH (04/17/62)

April 17, 1962

RONDINELLI
v.
PITTSBURGH, APPELLANT.



Appeal, No. 123, March T., 1962, from judgments of Court of Common Pleas of Allegheny County, April T., 1957, No. 1801, in case of Beatrice L. Rondinelli and Ernest M. Rondinelli, her husband, v. City of Pittsburgh. Judgments affirmed.

COUNSEL

George Shorall, Assistant City Solicitor, with him David W. Craig, City Solicitor, for City of Pittsburgh, appellant.

James P. Gill, with him Edward O. Spotts, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 407 Pa. Page 90]

OPINION BY MR. JUSTICE MUSMANNO

On July 21, 1956, Ernest M. Rondinelli, with his wife at his side and his three-year-old boy in the rear

[ 407 Pa. Page 91]

    seat of his 1954 two-door Ford automobile, was driving northwardly on Woodruff Street in Pittsburgh, when his car was struck by a police ambulance proceeding in the opposite direction. Mrs. Rondinelli was severely injured. Mr. and Mrs. Rondinelli brought an action of trespass against the City of Pittsburgh and recovered verdicts in the respective sums of $3,000 and $12,000. The defendant moved for judgment n.o.v., and for a new trial. Both motions were refused and the defendant appealed.

The defendant contends that it was entitled to a compulsory non-suit in the first instance, and now to judgment n.o.v. on the basis that the defendant was not proved to have committed actionable negligence and that Rondinelli was guilty of contributory negligence as a matter of law. The record fails to offer any support to these contentions. It was about 5:30 in the afternoon of the day mentioned when Rondinelli turned left from Saw Mill Run Boulevard (Route 51), on which he had been traveling in an eastwardly direction, into Woodruff Street which, at this point climbs markedly. As he entered into Woodruff Street, which is a four-lane winding thoroughfare, he saw a police ambulance speeding toward him at from 50 to 60 miles per hour, on a steep downgrade, zigzagging and, in his eyes, apparently out of control. In its erratic advance the ambulance swung from its lane of descent over to the plaintiff's lane, then swerved back to its proper path and once again returned to the plaintiff's side of the road, this time hitting him on the left with such violence that the ambulance itself lost balance and toppled.

The defendant argues that the plaintiff could have averted the collision if he had availed himself of the "last clear chance doctrine". The phrase is mis-employed in this connection, but assuming the image apparently intended by the defendant, it is clear that

[ 407 Pa. Page 92]

    there was no obligation on the part of the plaintiff to subject himself to the jeopardy the defendant recommends. A motorist who is thrown into a state of peril because of no fault of his own is not required to work out mathematically the possibilities of escape by hurling himself desperately into a situation which offers him the "last clear chance" of survival, but which, concomitantly, offers also a chance of complete disaster. A pedestrian on a bridge who is about to be run down by a car could possibly avoid that fate by leaping over the parapet into the river beneath and if he is a good swimmer suffer only a drenched suit ...


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