Matkevich v. Robertson

169 A.2d 91, 403 Pa. 200, 1961 Pa. LEXIS 443

• Court: Supreme Court of Pennsylvania
• Decided: March 23, 1961
• Docket: Appeal, 31
• Status: Published

Opinions

Opinion by

Mb. Justice Eagen,

This issue arises out of a collision involving an automobile owned and operated by the plaintiff, Joseph V. Matkevich, and an automobile operated by the defendant, Mattie Robertson, but owned by her father, the defendant, William Robertson. The plaintiff sued, both the driver and the owner of the Robertson automobile, to recover for personal injuries suffered and property damage to his automobile. The jury awarded the plaintiff a verdict against the owner-defendant, William Robertson, alone. The latter moved for judgment n.o.v. or a new trial. The lower court denied, both motions. From tbe judgment entered upon tbe verdict, tbe defendant, William Robertson, appeals.

Tbe motion for judgment n.o.v. is devoid of merit. Tbe question of negligence on tbe part of tbe driver of tbe Robertson automobile was distinctly a jury question and it was stipulated that sbe was tbe servant of William Robertson at tbe time of tbe accident.

Tbe collision occurred on a two-way improved public street, approximately twenty-one feet wide, wbicb was straight and level. Tbe weather was dry and cold. Tbe roadway was dry, but icy in spots. Tbe automobiles involved were traveling in opposite directions. According to plaintiff’s testimony, tbe defendant’s automobile crossed tbe center line, came over onto tbe wrong side of tbe road, traveled in a straight course for approximately eighty-five feet, and bit tbe plaintiff’s automobile bead on. What caused it to cross over tbe center line, tbe plaintiff did not know. At tbe moment of impact, tbe plaintiff bad pulled over on bis own right side of tbe road as far as possible and was practically stopped. The testimony of Mattie Robertson was to tbe effect that tbe car sbe was driving skidded on a patch of ice wbicb caused her to lose control of tbe vehicle, resulting in tbe car unintentionally veering over on the wrong side of tbe road.

In considering tbe merits of a motion for judgment n.o.v., tbe entire testimony must be evaluated in tbe light most favorable to tbe verdict winner: Taylor v. Mountz, 387 Pa. 321, 127 A. 2d 730 (1956). This Court has held, again and again, that when an automobile is operated on tbe wrong side of tbe highway, that fact in itself is prima facie evidence of negligence and is sufficient to carry tbe case to tbe jury on that question. If it is tbe proximate cause of an invasion of another’s interest, it will justify a jury finding tbe actor liable for tbe resultant injury: Nixon v. Chiarilli, 385 Pa. 218, 122 A. 2d 710 (1956); Buchanan v. Belusko, 361 Pa. 465, 65 A. 2d 386 (1949); Fisher v. Hill, 362 Pa. 286, 66 A. 2d 275 (1949); Miles v. Myers, 353 Pa. 316, 45 A. 2d 50 (1946). This is not the case of Richardson v. Patterson, 368 Pa. 495, 84 A. 2d 342 (1951), wherein the plaintiffs own evidence showed that the other car skidded and then came over on the wrong side of the road as a result of the skidding. As that ease pointed out, skidding in itself does not constitute negligence, and if the plaintiffs testimony shows the defendant’s car skidded over on the wrong side of the road, then it is incumbent upon him to go further and show that the skidding was a result of negligent operation of the car. However, where, as here, the plaintiff is content to prove a collision as a result of the defendant’s car being over on the wrong side of the road, the burden is upon the defendant to offer exculpatory proof. The truthfulness of defendant’s explanation of why and how the Robertson car was over on the wrong side of the road was for the jury; this, together with the other testimony, was for its consideration in determining the issue of negligence. In itself, it was not automatically self exculpatory.

Unfortunately, the case must be retried. The verdict was against the owner of the automobile alone. No verdict was returned against the driver, who was the actual tortfeasor; the verdict was in effect, in her favor. Since the relationship of respondeat superior was admitted, the owner was properly found liable, if his servant were negligent. However, his liability was of necessity based solely upon this relationship and the negligence of his servant. He was not charged with an independent act of negligence, nor was such proven. Unless a cause of action existed against the servant, the master, under such circumstances, cannot be held: Pryor v. Chambersburg Oil & Gas Co., 376 , 103 A. 2d 425 (1954) ; 35 Am. Jur., Master and Servant, §476 (1941). A verdict against the employer and in favor of the employe, or vice versa, under the circumstances, is inconsistent: Ferne v. Chadderton, 363 Pa. 191, 69 A. 2d 104 (1949). The jury’s unwarranted action was invited by the instructions of the trial judge, who incorrectly told them, on more than one occasion, that the plaintiff could recover against the owner of the car alone and that the jury could in its discretion exculpate the driver of the automobile. This was basic, fundamental, and prejudicial error. The general exception to the charge was sufficient to preserve the right to appellate review of this erroneous instruction: Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A. 2d 697 (1952).

The authorities cited by the lower court in support of the correctness of the charge and the validity of the verdict are inapposite. In East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 2d 401 (1937), there was evidence of an independent act of negligence on the part of the employer. The verdict was not necessarily predicated on any act of the servant. In Landis v. Conestoga T. Co., 349 Pa. 97, 36 A. 2d 465 (1944), the jury failed to render a verdict against the servant, or operator, of a tractor-trailer involved in an accident and did render a verdict against the employer. However, the jury’s action in that case was not due to erroneous instructions on the part of the court and, what is more important, when counsel for one of the parties involved immediately made a motion to have the jury retire again and make a specific finding as to the servant, counsel for the employer resisted and objected. This Court properly held that, under these facts, the employer-defendant waived the right to subsequently raise the issue.

We are reluctant to order a retrial, particularly in view of the family relationship existing herein between the defendants. However, to condone such error would do havoc to the principles of law concerning the rights of indemnity and might well influence the compounding of the error in the trial of future cases.

Judgment reversed and a venire facias.de novo.