Wallin v. Katz

86 Pa. Super. 581, 1925 Pa. Super. LEXIS 189

• Court: Superior Court of Pennsylvania
• Decided: October 21, 1925
• Docket: Appeal 216
• Status: Published

Opinion

Opinion by

Portes, J.,

This is an appeal by the defendant from a judgment in favor of the plaintiff, in an action for personal injuries sustained by her when a business truck of the defendant ran into a street oar upon which plaintiff was a passenger. The defendant, upon the trial, presented a point requesting binding instructions in his favor, which the court refused. He subsequently made a motion for judgment non obstante veredicto, which the court overruled and entered judgment on the verdict. The defendant contends that the case ought not to have been submitted to the jury for two reasons: (1) That there was no evidence that the truck had been negligently operated, and, (2) That there was not sufficient evidence to warrant a finding that the defendant was the owner of the truck, or that he was responsible for the manner in which it w,as operated.

The plaintiff produced evidence which, if believed, established that the truck was standing on the east side of Fourth Street, Philadelphia, facing south. The street car upon which plaintiff was a passenger was proceeding southward on Fourth Street, at a reasonable speed, and when the front of the car was opposite the rear end of the truck, the driver of the truck suddenly started the vehicle and turned it toward the street car track, without looking ;as to whether a street car was approaching and without giving any warning of his intention to drive upon the track; the motorman of the street car applied the air brake and did everything possible to stop the street car; the truck was driven against the side of the street car, striking the latter about five or six feet from the front end thereof; and the plaintiff was thrown from her seat and severely injured, as the result of the collision. It was the duty of the driver of the truck to look and ascertain whether a street car was approaching before attempting to drive upon the track. This the driver of this truck did not do, or, if he did look, he started his truck in a manner which rendered a collision not only probable, but absolutely certain to occur. The evidence was clearly sufficient to warrant a finding that the truck was negligently operated.

The vehicle which ran into the street car was a business delivery truck and upon the side thereof was the sign “Meyer Katz, Kosher Products”, the name of this defendant and description of the business in which he was engaged. This was evidence of the ownership of the truck by this defendant. In addition to this evidence, a witness, Steinberg, testified that the driver of the truck, at the time of the accident, came to him and asked him his name and Steinberg gave him his business card; that sometime after this, the defendant, with whom the witness had not been acquainted, came to see him and called his attention to the fact that he ha,d given his business card to the driver. This circumstance clearly indicated that the driver of the truck had reported to this defendant. The fact that this was a business truck which bore the name of the defendant and designated the business in which he was engaged was prima facie evidence that the defendant was the owner of the truck, and also, that it was then in charge of his servant acting in the course of his employment: Holzheimer v. Lit Bros., 262 Pa. 150; Seiber v. Russ Bros. Ice Cream Co., 276 Pa. 340. The assignments of error are overruled.

The judgment is affirmed.