Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia (C.P. No. 1), March T., 1962, No. 5179, in case of Amanda Louise Little, Joseph Little, Edward Daniel Little and Mary Hynes, Fred Hynes, and Linda Ann Hynes, a minor, by her parent and natural guardian, Fred Hynes in his own right, v. Byron W. Jarvis and Joseph Little and Edward Daniel Little.
Stanley P. Stern, for appellants.
Nathaniel P. D'Amico, with him James J. McEldrew, and McEldrew, Hanamirian, McWilliams, Quinn and Bradley, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Opinion by Cercone, J. Jacobs, J., would grant a new trial generally.
[ 219 Pa. Super. Page 158]
This appeal arises out of a suit involving an automobile accident which occurred on March 23, 1962 in Philadelphia. The event in question involved a collision among three cars, at an intersection controlled by traffic lights. The driver of one of the cars was found to be completely free of any fault in the accident. His claim or participation in the accident is not before us on this appeal.
Of the two other cars, the first was driven by one of the plaintiffs, Edward Little. At trial Edward Little related that he was driving home from the market that day and had three passengers with him on this trip -- all in the front seat. His sister, Mary Hynes, was seated next to him and she was holding her small daughter, Linda Ann. Next to them, and seated right next to the door, was Mrs. Amanda Little, the mother of Edward and Mary, and the grandmother of little Linda Ann. The second auto was driven by the defendant, Byron Jarvis and he was alone in his car.
Suit was brought by all parties in the Little car, as plaintiffs, for both personal injuries and the property damage which resulted from the accident. Joseph Little, Amanda's husband, was also a party plaintiff because he owned the car his son, Edward, was driving and also because he had incurred medical bills and bills for a maid while his wife was incapacitated by the accident. Linda Ann's father, Fred Hynes, brought suit in his own right and as natural guardian of his daughter, and also for injuries to his wife, Mary. Byron Jarvis, as defendant, joined Joseph Little and Edward Little as additional defendants.
At trial, before a judge and jury, the judge directed a verdict against Edward Little, finding him contributorily negligent as a matter of law. Little complains that this action was improper. In general, contributory negligence should be adjudged as a matter of law only
[ 219 Pa. Super. Page 159]
in clear cases where the facts are indisputably fixed and there can be no reasonable doubt as to the inferences to be properly drawn from them; however, where the facts adduced in plaintiff's own case clearly establish his guilt of contributory negligence, it is not only the right, but the duty of a court to direct the verdict of contributory negligence as to plaintiff. Sargeant v. Ayers, 358 Pa. 393, 57 A.2d 881 (1948).
Our examination of the evidence presented in the instant case requires us to agree with the learned trial judge's decision directing a verdict against Edward Little. Edward testified himself that he was driving in excess of the existing statutory speed limits at the time the accident occurred. He also revealed that he was driving the car with four people, including himself, in the front seat, which is also a violation of state laws relating to reckless driving. Act of April 29, 1959, P. L. 58, § 1001, 75 P.S. § 1001. He further testified that one of the passengers, little Linda Ann, was pulling on his arm and distracting him so that he was looking down at her and not at the road or approaching traffic as he entered the intersection. Lastly, Edward ...