Appeal from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1961, No. 400, in case of Angelo P. Atene v. Paul A. Lawrence.
Fred Lowenschuss, with him William M. Labkoff, and Snyder & Lowenschuss, for appellant.
William B. Freilich, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice O'Brien and Mr. Justice Roberts concur in the result. Mr. Chief Justice Bell and Mr. Justice Cohen dissent.
On July 17, 1961, the plaintiff Angelo P. Atene was injured when the car which he was driving came into collision with a car being operated by the defendant Paul A. Lawrence, in which nine passengers were riding, four in the front seat.
In the lawsuit which followed, a verdict was returned in favor of the defendant. The plaintiff has appealed for a new trial, urging trial errors.
Section 1001 of The Vehicle Code, provides, inter alia: "Reckless driving is unlawful, and for the purpose of this act, is construed to include the following: (1) Any person who drives any vehicle or streetcar or trackless trolley omnibus upon a highway carelessly disregarding the rights or safety of others, or in a manner so as to endanger any person or property. (2) If investigation into an accident arising from the use and operation of a motor vehicle discloses that the accident occurred due to the front seat of the motor vehicle having been occupied by more than three (3) persons . . ." (75 P.S. § 1001)
At the trial, plaintiff's counsel asked the Court to charge the jury on § 1001, in so far as it applied to the facts in the case. The judge held that since one of the four persons in the front seat was a two-year-old child, the indicated provision of the Code did not apply, and, therefore, refused to charge on the subject. The learned judge was in error.
The statute does not state that four persons must anatomically be seated on the forward cushion. Under
the judge's interpretation, if two persons were riding monkey fashion on the shoulders of two other passengers in the front seat, the statute would be uncontrolling, which interpretation, of course, would be wholly erroneous because the danger resulting from four persons so pretzelled on the front seat would be obvious.
In addition, the statute does not say that the persons in the front seat must be adults, nor that they must be sitting latitudinously one next to the other. It could well be that the peril resulting from persons wedged side by side in the front seat would be less than the peril resulting from a passenger holding a two-year-old child in his lap. An infant requires considerable attention, especially when riding in the forward part of a rapidly-moving vehicle. An impetuous stretching out of the arms, a squirming impatience, an impetuous clutching of the ...