Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1958, No. 3024, in case of Patrick Joyce v. Martha P. Quinn, administratrix of estate of Robert Quinn, deceased.
Frank J. Kernan, with him P. J. McArdle, for appellant.
Kim Darragh, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Wright, J., would affirm on the opinion of Honorable Robert Van der Voort for the court below.
[ 204 Pa. Super. Page 582]
This is an appeal from the order of the Court of Common Pleas of Allegheny County denying plaintiff-appellant's motion for a new trial in an action of trespass which arose as a result of personal injuries received in an automobile accident which occurred on July 9, 1958, on Duncan Avenue in Hampton Township, Allegheny County. At the time of the accident appellant, a licensed driver, was seated in the front seat of an automobile owned and operated by Robert Quinn, 42 years of age, who was operating on a learner's permit. Prior to the trial Robert Quinn died of causes unrelated to the instant accident.
The appellant contends that the lower court erred, first, by instructing the jury on assumption of risk; and, second, by permitting defendant-appellee to question plaintiff-appellant about bringing a lawsuit to recover damages for injuries that he received in another accident.
Appellant's description of the accident briefly was as follows, viz.:
"A. I noticed a car coming toward us and he seemed to be taking more than his share of the highway. Q. How much more of his share was he taking than he should have been taking? A. About a foot. Q. He would be about a foot over the center? A. Yes, something like that. Q. When you saw that, what did you do? A. I told Mr. Quinn to pull over on the berm as this fellow didn't seem to want to give us much of the highway. Q. What did Mr. Quinn do? A. He did that, pulled over and slowed down, as I told him to, asked him to. Q. He pulled over on the berm and slowed down, and how much did he slow down? A. To about 10 miles an hour. Q. Now, was there any collision between Mr. Quinn's car and this other car? A. No, sir. Q. Did the other car get by all right? A. Yes. Q. What happened after the other car got by? A. Well,
[ 204 Pa. Super. Page 583]
Mr. Quinn continued along the berm for about 75 or 100 feet, and I asked him to stop a couple of times, two or three times, and he just didn't, and he pulled right out onto the asphalt, the highway again, and he began to accelerate, accelerate his car, and he continued on across the tracks and shot straight at an angle for that bridge rail and went through."
It is the contention of the appellant that the doctrine of assumption of risk has no application under the evidence in this case and it is conceded by the appellee that the only contributory negligence that could possibly be charged to appellant was his assumption of the risk involved in riding with a driver operating on a learner's permit. There is no evidence of the driver's incompetence to drive an automobile prior to the accident other than that he was operating on a learner's permit, which compelled the presence of a licensed driver in the automobile with him. On the contrary, all of the other evidence as to Quinn's ability to drive prior to the accident points to his competency. He had been driving for five weeks on a learner's permit, with appellant and others riding with him and teaching him. He was doing very well and had driven in traffic eight or ten times. On the evening of the accident he had driven from Pittsburgh during the hour preceding the accident. The accident occurred by reason of what may have been an emergency created by a third person. Recognizing that fact, the court instructed the jury as to the law on emergencies; and the jury very well could have exonerated him from any negligence under the circumstances.
The results attained in our sister states in this type of case vary. Some states hold that one who is licensed to operate a motor vehicle and who voluntarily accompanies a driver who has just received a learner's permit for the purpose of teaching him ...