Opinion by
Mr. Justice Horace Stern,
As the court below correctly decided, the contributory negligence of the decedent bars the right of the executor of her estate to recover damages in this action because of her death.
[249]*249As far as defendant’s negligence is concerned the testimony clearly revealed it and it was factually established by the verdict of the jury. At about four o’clock in the afternoon of a March day a truck, a tractor-trailer, employed in defendant’s business, heavily loaded with lumber, was being operated over a public highway in Allegheny County known as Curry Hollow Eoad. The day was clear and bright and the road was dry. The truck became disabled while ascending a slight grade in the road. Another truck hauled it over the crest of the ridge to a point 170 feet beyond. There its driver permitted it to stand covering all the westbound lane of traffic except about two or three feet. In the centre of Curry Hollow Eoad there is a four foot divider about six inches high, the traffic lane on each side being ten feet wide. The tractor-trailer remained parked in its position of blockage for about fifteen to twenty minutes before the occurrence of the accident which is here involved. No red flags were placed along the highway or at the truck, nor were any other warnings given to approaching traffic. The operator left the truck in order to telephone for aid, leaving his helper sitting in the cab reading.
At about 4:15 o’clock the decedent, Mrs. Toenges, was driving her husband’s automobile in a westerly direction on Curry Hollow Eoad. She was accompanied by a maid whom she employed one day a week for housework and domestic service and whom she was taking home after the day’s work. She came up to the crest of the hill, proceeded from there down the slight incline on the other side, and crashed into the parked truck, the lumber on which, extending out several feet beyond the rear of the truck, went through the windshield of her automobile, killing Mrs. Toenges and seriously injuring the maid. Mrs. Toenges’ husband, executor of her estate, brought suit to recover damages [250]*250on behalf of the estate and under the wrongful death act, and also in his individual capacity for the damage to his car. The jury returned verdicts in favor of the plaintiff as executor aggregating $8,843.56 and a verdict for the plaintiff individually in the sum of $900. The court en banc entered judgment n.o.v. in favor of the defendant as to the verdicts of $8,843.56, and ordered entry of judgment in favor of the plaintiff on the $900 verdict. The plaintiff appeals from the judgment n.o.v. in favor of defendant while the defendant appeals from the judgment of $900 in favor of plaintiff covering the damage to his car.
The driver of defendant’s truck claimed that he could not safely take it off the paved highway because the berm at that point was soft, but plaintiff produced evidence to show that it could readily have been drifted a short distance further down the incline to a point where the berm was more solid. The jury, under proper instructions of the court, found that the driver was guilty of negligence in leaving the truck standing upon the paved portion of the highway when it was practicable to park it otherwise, and without red flags or other warning signals, in violation of the applicable provisions of The Vehicle Code (Act of May 1, 1929, P. L. 905, art. VIII, section 824, and art. X, section 1019) as amended.
The principal question in the case is that of decedent’s contributory negligence. The maid, who was seated on the front seat of the automobile next to Mrs. Toenges, testified that as they neared the top of the hill the sunshine blinded her; she was looking straight ahead at the time and noticed that Mrs. Toenges was also looking straight ahead. The blinding continued for about two seconds. The car had been moving at the rate of about 30 miles per hour; it slowed down “the least bit” during the passage through the area of blindness, but it came out of that area, according to the [251]*251maid’s testimony, at the same speed at which it had entered, and when it emerged the truck was standing only a car’s length — about 15 feet — ahead of it. Assuming, as perhaps we fairly may, that if the maid was temporarily blinded by the sunshine Mrs. Toenges was likewise blinded, she was nevertheless clearly guilty of contributory negligence. Measurements were subsequently made by a registered civil engineer and photographs were taken according to which it appeared that as decedent’s car came up the grade the top of the truck would be visible to her when she was still 350 feet distant from the crest, and gradually more and more of the truck would appear in view until at a point 200 feet away from it the whole of it could be seen standing on the roadway. It is true that these measurements and photographs were introduced in evidence by the defendant but their accuracy is not challenged; on the contrary, they are accepted without question in plaintiff’s brief. As decedent approached the top of the hill she saw, therefore, or would have seen had she observed what was obvious, that, immediately previous to her being blinded by the sunshine, the truck was sprawled across the road at an extremely short distance in front of her. Nevertheless she continued on, presumably sightless, at a speed of approximately 30 miles an hour for two seconds during which she covered therefore a distance of less than 100 feet, and then, when her vision was restored, she was practically on top of the truck and ran into it with such considerable force that the lumber extending out from its rear crashed through the windshield of her car, killing her, seriously injuring the maid, and almost completely demolishing the car. While, according to the law several times proclaimed by our appellate courts,
As far as the $900 verdict for the damages to the husband’s car is concerned, it is urged by defendant that in driving her maid home Mrs. Toenges was acting not only for herself but also for her husband, on the theory that both of them were interested in the domestic management of their household. But no relation of master and servant or principal and agent as between [253]
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Opinion by
Mr. Justice Horace Stern,
As the court below correctly decided, the contributory negligence of the decedent bars the right of the executor of her estate to recover damages in this action because of her death.
[249]*249As far as defendant’s negligence is concerned the testimony clearly revealed it and it was factually established by the verdict of the jury. At about four o’clock in the afternoon of a March day a truck, a tractor-trailer, employed in defendant’s business, heavily loaded with lumber, was being operated over a public highway in Allegheny County known as Curry Hollow Eoad. The day was clear and bright and the road was dry. The truck became disabled while ascending a slight grade in the road. Another truck hauled it over the crest of the ridge to a point 170 feet beyond. There its driver permitted it to stand covering all the westbound lane of traffic except about two or three feet. In the centre of Curry Hollow Eoad there is a four foot divider about six inches high, the traffic lane on each side being ten feet wide. The tractor-trailer remained parked in its position of blockage for about fifteen to twenty minutes before the occurrence of the accident which is here involved. No red flags were placed along the highway or at the truck, nor were any other warnings given to approaching traffic. The operator left the truck in order to telephone for aid, leaving his helper sitting in the cab reading.
At about 4:15 o’clock the decedent, Mrs. Toenges, was driving her husband’s automobile in a westerly direction on Curry Hollow Eoad. She was accompanied by a maid whom she employed one day a week for housework and domestic service and whom she was taking home after the day’s work. She came up to the crest of the hill, proceeded from there down the slight incline on the other side, and crashed into the parked truck, the lumber on which, extending out several feet beyond the rear of the truck, went through the windshield of her automobile, killing Mrs. Toenges and seriously injuring the maid. Mrs. Toenges’ husband, executor of her estate, brought suit to recover damages [250]*250on behalf of the estate and under the wrongful death act, and also in his individual capacity for the damage to his car. The jury returned verdicts in favor of the plaintiff as executor aggregating $8,843.56 and a verdict for the plaintiff individually in the sum of $900. The court en banc entered judgment n.o.v. in favor of the defendant as to the verdicts of $8,843.56, and ordered entry of judgment in favor of the plaintiff on the $900 verdict. The plaintiff appeals from the judgment n.o.v. in favor of defendant while the defendant appeals from the judgment of $900 in favor of plaintiff covering the damage to his car.
The driver of defendant’s truck claimed that he could not safely take it off the paved highway because the berm at that point was soft, but plaintiff produced evidence to show that it could readily have been drifted a short distance further down the incline to a point where the berm was more solid. The jury, under proper instructions of the court, found that the driver was guilty of negligence in leaving the truck standing upon the paved portion of the highway when it was practicable to park it otherwise, and without red flags or other warning signals, in violation of the applicable provisions of The Vehicle Code (Act of May 1, 1929, P. L. 905, art. VIII, section 824, and art. X, section 1019) as amended.
The principal question in the case is that of decedent’s contributory negligence. The maid, who was seated on the front seat of the automobile next to Mrs. Toenges, testified that as they neared the top of the hill the sunshine blinded her; she was looking straight ahead at the time and noticed that Mrs. Toenges was also looking straight ahead. The blinding continued for about two seconds. The car had been moving at the rate of about 30 miles per hour; it slowed down “the least bit” during the passage through the area of blindness, but it came out of that area, according to the [251]*251maid’s testimony, at the same speed at which it had entered, and when it emerged the truck was standing only a car’s length — about 15 feet — ahead of it. Assuming, as perhaps we fairly may, that if the maid was temporarily blinded by the sunshine Mrs. Toenges was likewise blinded, she was nevertheless clearly guilty of contributory negligence. Measurements were subsequently made by a registered civil engineer and photographs were taken according to which it appeared that as decedent’s car came up the grade the top of the truck would be visible to her when she was still 350 feet distant from the crest, and gradually more and more of the truck would appear in view until at a point 200 feet away from it the whole of it could be seen standing on the roadway. It is true that these measurements and photographs were introduced in evidence by the defendant but their accuracy is not challenged; on the contrary, they are accepted without question in plaintiff’s brief. As decedent approached the top of the hill she saw, therefore, or would have seen had she observed what was obvious, that, immediately previous to her being blinded by the sunshine, the truck was sprawled across the road at an extremely short distance in front of her. Nevertheless she continued on, presumably sightless, at a speed of approximately 30 miles an hour for two seconds during which she covered therefore a distance of less than 100 feet, and then, when her vision was restored, she was practically on top of the truck and ran into it with such considerable force that the lumber extending out from its rear crashed through the windshield of her car, killing her, seriously injuring the maid, and almost completely demolishing the car. While, according to the law several times proclaimed by our appellate courts,
As far as the $900 verdict for the damages to the husband’s car is concerned, it is urged by defendant that in driving her maid home Mrs. Toenges was acting not only for herself but also for her husband, on the theory that both of them were interested in the domestic management of their household. But no relation of master and servant or principal and agent as between [253]*253husband and wife arises merely by reason of their marital status (Rodgers v. Saxton, 305 Pa. 479, 158 A. 166) and there is no testimony in the record to indicate that Mrs. Toenges was transporting the maid in pursuance of any contractual obligation which bound her and her husband so to do; the maid testified merely that it was “the plan” that Mrs. Toenges should take her home, that it was “always her custom” to take her home after the day’s work. In the absence of any evidence of a contractual duty it must be presumed that Mrs. Toenges was rendering a purely gratuitous service, in which event it certainly could not be argued that she was acting as the legal agent of her husband. A wife or husband using, by permission, the other’s car, or a child using, by permission, a parent’s car, does not make his or her negligence imputable to the owner of the car, not present therein, unless such user is engaged upon the owner’s business: Markle v. Perot, 273 Pa. 4, 116 A. 542; Piquet v. Wazelle, 288 Pa. 463, 136 A. 787; Rosen v. Diesinger, 306 Pa. 13, 18, 19, 158 A. 561, 562; Cox v. Rochler, 316 Pa. 417, 175 A. 417; Haley v. Litzinger, 131 Pa. Superior Ct. 559, 200 A. 165. Driving the maid home in the present instance was not a part of the husband’s business nor did it constitute an errand undertaken on his behalf. Therefore the contributory negligence of decedent did not act as a bar to her husband’s right of recovery for the damage to his car; cf. Best. Torts, §487.
The judgments are affirmed.
Farley v. Ventresco, 307 Pa. 441, 161 A. 534; Nelson v. Damus Bros., Co., Inc., 340 Pa. 49, 16 A. 2d 18; Buohl v. Lockport Brew[252]*252ing Co., 349 Pa. 377, 37 A. 2d 524; Vierling v. Fry, 354 Pa. 66, 46 A. 2d 473; Wolfe v. Beardsley, 357 Pa. 1, 53 A. 2d 92; Young v. New York Auto Carrier Co., 364 Pa. 351, 72 A. 2d 68; Boor v. Schreiber, 152 Pa. Superior Ct. 458, 33 A. 2d 648; Miller v. Duffee Transfer Co., 165 Pa. Superior Ct. 64, 67 A. 2d 809.