Gillespie v. Shafer

69 Pa. Super. 389, 1918 Pa. Super. LEXIS 403

• Court: Superior Court of Pennsylvania
• Decided: March 2, 1918
• Docket: Appeal, No. 279
• Status: Published

Opinion

Opinion by

Kephart, J.,

Both parties to this appeal were driving motor vehicles on Broad street in West Bethlehem. The appellant was using the southerly side of that street, traveling eastwardly; the appellee was on the opposite side traveling westwardly. The appellant, when at the intersection of Seventh avenue and Broad street, made a quick turn to go north on the avenue, cutting across by the shortest angle of the turn at the intersection of the streets, crossing over two street car tracks and directly across the path of the plaintiff, of whose approach he had an unobstructed view for some distance. The appellant, against whom damages were awarded, urges that the appellee was guilty of contributory negligence in that he did not approach the corner with his car under control, and he could see the appellant’s car making the turning movement a sufficient distance away to have enabled him to have stopped his motorcycle. “It is the duty of one approaching the crossing of a street intersection to have his vehicle under control; and to observe what is or may be approaching on the other street. And where another vehicle is first at the crossing to give it an opportunity to clear the same; and to use due care to avoid a collision” : McClung v. Pennsylvania Taximeter Cab Co., 252 Pa. 478-480. The testimony shows that the motorcycle was traveling at a speed of fifteen miles an hour as it approached the crossing. There was a vacant lot on the driver’s right, which gave him a clear view of the intersecting street to the north for some distance; on his left he had the greater part of the width of Broad street, sixty feet, and from his position looking south on Seventh avenue, he had a view for some distance. As the situation thus presented itself to the court it could not say, as a matter of law, that the defendant’s car was not under control. Even if he did see the appellant’s automobile approach, he was under no duty to anticipate that the defendant would carelessly and without warning or notice, cross his path directly in front of him. Had the appellant followed the natural course of travel, and placed himself in a position where the appellee should know that he intended to cross the street (that is, by putting his car in line of such travel), it would have been the duty of the court, under such circumstance, to declare the appellee’s conduct negligent as a matter of law. The court submitted to the jury the questions of contributory negligence and notice from the appellant’s turning movement. The appellee states that he only saw the defendant when he suddenly loomed up in his path. He was observing what was approaching on the intersecting street. It was not possible, when thus engaged, to notice a vehicle suddenly swerve from its path of safety and cross diagonally in front of his machine. Under this state of facts, the entire matter was for the jury. A person lawfully in the public highway may rely upon the exercise of reasonable care by the drivers of vehicles to avoid injury and the failure to anticipate the omission of such care does not render him negligent: Lewis v. Wood, 247 Pa. 545.

There was offered in evidence an ordinance requiring all vehicles in turning corners to the left, before turning, should pass to the right of the intersection of the two streets. The admission of this ordinance is assigned as error. It is urged that it tended to confuse the jury, and its violation was not the proximate cause of the injury. To establish negligence, there must first be made to appear a duty unperformed; without the violation of a duty there can be no negligence. This duty may be imposed either through the relation of the parties or by statute. The legislature may impose a duty distinct from a common law duty and prescribe a standard of care for that duty. A municipality cannot, by ordinance, create a civil duty enforceable at common law; that power reposes in the legislature: Philadelphia & Reading R. R. Co. v. Ervin, 89 Pa. 71. It seems to be well settled that the specific duty, “the violation of which is actionable, may arise from a valid statute ......, as well as from the general principles of the common law”: Fielders v. North Jersey St. Ry. Co., 53 Atl. 405. It was the appellant’s duty not to negligently, that is, carelessly, commit or omit to do an act whereby the appellee was injured. The standard by which the performance of this common law duty may be judged is ordinary care under the circumstances, or the conduct of a prudent, careful, diligent or skillful man in relation to- the particular duty under consideration. The legislative authority, by statute or ordinance, may prescribe a course of conduct or the existence of certain conditions as being the standard of care by which the performance of a common law duty may be judged. The standard of care prescribed by the legislature may be the same as that prescribed at common law, as for instance, an ordinance requiring open ways in a street to be guarded. It is, however, the violation of that standard, whether at common law or fixed by statute or ordinance, that makes out a case of “actionable negligence,” and, as generally considered in this State, the ordinance or statute is only helpful as evidence, making less difficult the proof as to whether the acts complained of are in fact negligent. “Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion, on a matter as to which the municipal authorities had acted, that the defendant was negligent, and are to be taken into consideration with all the other facts of the case”: Ubelmann v. American Ice Co., 209 Pa. 398-400. There may be such standard prescribed that its violation will be negligence per se notwithstanding intermediate causes: Stehle v. Jaeger, Etc., Machine Co., 225 Pa. 348. If the violation of the standard prescribed by ordinance is not the cause or proximate cause of the injury, the ordinance is not helpful in the determination of the case and should not be received as evidence. The ordinance in question prescribed a course or rule of conduct for persons who might be subject thereto for the purpose of insuring the safety of others using the streets. The municipal authorities having determined that the specific act; namely, running a car by a sharp, turning movement in the face of traffic moving directly against such travel, as well as at right angles with it, was dangerous, decided that the standard of care in making the turning movement should be to the right of the intersection of the two streets, thus placing the car in the natural line of travel where its position served as a notice and warning to intersecting travel that the car was about to cross the street. The driver of a car crossing an intersecting street under any condition is obliged to keep his car under control and observe what is approaching on the street he intersects; or, in other words, what has been held to be due care in driving across intersecting streets. Had the appellant in “cutting the corner” used such care he would not have been confronted with the present difficulty. He not only neglected to do this, but he violated the terms of the ordinance. Obedience to either standard ordinarily would have prevented injury, for when the turning movement as provided by the ordinance was made with the appellant’s car in the natural line of travel, the appellee was under the legal duty to anticipate or expect the appellant to cross the street; and if the appellant in crossing used due care, and the appellee approached the crossing at a speed of fifteen miles per hour, when the appellant’s car was plainly visible either crossing or about to cross the street, his car would not have been under control and the court would have so determined as a matter of law. As it was, no duty was imposed on the appellee to expect or anticipate the movement made by the appellant out of the line of ordinary travel, hence the speed of the appellee’s car could not be held negligent as a matter of law. The injury that followed the violation of the ordinance was what might have been ordinarily expected with traffic moving on these thoroughfares. In other words, obedience to the ordinance would in all (probability have avoided the accident. Under the circumstances of the case, it was for the jury to determine whether the violation was the proximate cause. The ordinance, with its violation, -was offered, not for the purpose of conclusively establishing negligence (standing alone it could not do this), but for the purpose of aiding the jury in their deliberation as a “municipal expression of opinion upon the subject under investigation to be considered with all other evidence in the case,” and, from the very close relation between the test prescribed by ordinance and the act complained of, determine whether the violation of the ordinance was the proximate cause of the injury. “Where an injury has been caused by the omission of a duty imposed by an ordinance that relates to the act complained of, the failure to comply with the ordinance may be ground for the inference of negligence and it may be considered with the other facts of the case in determining the defendant’s liability. In such a case the ordinance is admissible in evidence, but at most it is merely evidence of negligence: Connor v. Electric Traction Co., 173 Pa. 602; Foote v. American Product Co., 195 Pa. 190; Ubelmann v. American Ice Co., 209 Pa. 398; Riegert v. Thackery, 212 Pa. 86; Shaffer v. Roesch, 215 Pa. 287”: Fane v. Philadelphia Rapid Transit Co., 228 Pa. 471-171. The mere fact of the violation of the ordinance is not sufficient to establish negligence: Ubelmann v. American Ice Co., 209 Pa. 398; Foote v. American Product Co., 195 Pa. 190.

The ordinary and lawful travel on thoroughfares is to the right and at intersecting streets in cities and boroughs it is to the right of the center of the intersection. The ordinance fixed the same standard of care as that at common law, and so considered, its admission as evidence was proper. An ordinance adopted the same standard of care as that required in the performance of a common law duty is properly admitted as evidence: Philadelphia & Reading R. R. Co. v. Ervin, supra; McNerney v. Reading City, 150 Pa. 611-615.

Some of the assignments of error are not in the form prescribed by our rules and will not be considered.

The court did not err in refusing to affirm the points presented by the appellant and in its charge of the court here specified for error. The salient feature which justified the refusal of the points is their lack of specific averment of facts necessary for a proper affirmance. The gist of the charge of negligent conduct consisted in the fact that the appellee saw the appellant start his turning movement a sufficient distance away to have prevented injury. The court stated to the jury that if the appellee “could see the defendant here when he was moving away from his course a short distance to the north” that he would be chargeable with contributory negligence, or if he could see the signal of the defendant that he was about to cross the street. The court having defined the law of contributory negligence and applied it with the illustrating facts in its general charge, though not done as precisely as presented in the defendant’s points, cannot be convicted of error if it refuses to affirm points bearing on the same instruction.

No substantial harm was done by denying to the appellant the right to have the questions answered which are here assigned for error. Considering all of the testimony and the issue involved, the charge of the court was not prejudicial to the defendant. Harvey v. Philadelphia Rapid Transit Co., 255 Pa. 220, cited by the appellant, does not control this case. In that case, the driver of the automobile could see the street car approaching ninety feet away on the cross-over to run through the subway. In the case before us, the cross-over was a sharp, oblique turn, and, as found by the jury, the appellee had no notice that it was intended to be so made.

The assignments of error are overruled and the judgment is affirmed at the cost of the appellant.