Appeal from order of Court of Common Pleas of Washington County, Nov. T., 1961, No. 111, in case of Dominick F. DeJohn, Jr., Thomas DeJohn, and Catherine J. DeJohn, administratrix of estate of Marino T. DeJohn, deceased v. Leonard L. Orell.
Francis H. Patrono, with him Robert D. Beck, and Patrono, Ceisler and Edwards, for appellant.
Richard DiSalle, for appellees.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen, Mr. Justice Eagen and Mr. Justice O'Brien concur in the result. Mr. Justice Jones dissents. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
Dominick F. DeJohn, Jr., Thomas DeJohn, and Marino T. DeJohn were passengers in an automobile being operated by Leonard L. Orell in a westwardly direction on Route 40 in Fayette County. At a point some 10 miles east of Uniontown, the Orell car collided with a car being driven by a Frank Gleba in the opposite direction. As the result of the collision, Dominick and Thomas DeJohn were seriously injured and Marino DeJohn was killed. The two surviving passengers and the administratrix of the estate of the deceased Marino DeJohn brought an action of trespass against Leonard Orell, charging that, just before the collision, he suddenly and without warning recklessly and negligently drove his automobile into the path of the oncoming Gleba car.
At an ensuing trial the jury returned a verdict in favor of the defendant Orell. The plaintiffs moved for
a new trial asserting that the trial judge had erred in instructing the jury on contributory negligence, had improperly curtailed cross-examination of a defendant's witness, and had submitted a communication to the jury, in answer to a query from them, without first summoning counsel into the courtroom.
Since there was no evidence that the three DeJohns had contributed in any way to the happening of the accident, it was error on the part of the trial judge to charge on contributory negligence. In the case of Thomas v. Tomay, 413 Pa. 270, this Court reversed a verdict where the trial judge had charged on contributory negligence which was nonexistent. Justice O'Brien, writing for the Court, said: "The defendants offered no evidence to establish contributory negligence of the plaintiffs or any evidence from which contributory negligence could be inferred on the part of plaintiffs. In such circumstances, it was error to submit the question of contributory negligence to the jury when no evidence existed from which the jury could find it. The plaintiff's cases revealed no contributory negligence and no evidence was offered by defendants. A jury should not be permitted to make a finding of material fact in the absence of evidence to support the finding."
In the case at bar, the trial judge referred to contributory negligence not casually or merely in passing. He gave it full dress treatment. He defined contributory negligence at length and played it in massive chords on the piano of his instructions. He said: "If a motorist falls asleep or dozes while he is driving an automobile, he is guilty of negligence. If he drives an automobile while he is in such a state of exhaustion that he dozes even though he does not intend to do so, he is equally negligent. This is further complicated by the possible inference that if Orell were really dead on his feet and in no condition to drive, the DeJohns Page 362} may have been guilty of contributory negligence in riding with him if they knew this." (Emphasis supplied.)
There was no evidence that Orell was dead on his feet. In the first place he was not driving standing up, and he was very much alive, testifying vigorously at the trial. Nor was there any evidence that the ...