Grimes v. Yellow Cab Co. , 344 Pa. 298 ( 1942 )

From a careful reading of the record in the light most favorable to appellants, I am firmly convinced that the learned court below fell into error in ruling that the driver of the taxicab was not shown to have been negligent. Thomas Magan, the operator of the fire truck involved in the collision, testified that when he was seventy-five feet southeast of the intersection of the Parkway and 23rd Street, where the accident occurred, there was no traffic in the crossing and the signal light there was green in his favor. He further stated that he did not again look at the light, but continued northwest, at approximately twenty-two miles an hour, toward the intersection, observing traffic conditions straight ahead of him. It was stipulated at the trial by counsel for the parties that the traffic signal in question took four seconds to change from green to red. Therefore, even if the light had started to change immediately after Magan observed it, it is obvious that it could not have yet turned red for the Parkway traffic when the first truck was passing through the intersection. Clearly, then, the taxicab must have been driven north on 23rd Street through the red light into the Parkway. Furthermore, it is equally clear from the testimony adduced that the taxicab driver did not look to his right when he reached the Parkway, as he was required to do, otherwise he would have seen the fire truck approaching on the Parkway a short distance away with its headlights lighted and its red blinker lights flashing. The gong and the siren on the fire truck were in continuous operation and were clearly audible for a distance of several city blocks. It is well settled that at street crossings drivers of motor vehicles must be highly vigilant and maintain such control that they can stop their cars on the shortest possible notice: Goodall v. Hess, 315 Pa. 289,292. Therefore, as determined by the majority, the negligence of the driver of the cab was sufficiently shown to warrant the submission of this question to the jury.

However, I cannot concur in the opinion of the majority of the Court that Magan's failure to look for cross traffic at the intersection was not a contributing cause of the collision. Magan stated that, although it was raining and sleeting at the time, he approached the crossing in question, at about twenty-two miles an hour, without making any effort in the least at or near the intersection to observe cross traffic. He testified that from a distance of seventy-five feet southeast of the crossing he looked straight ahead and did not turn his vision either to his right or left. Had Magan looked when nearing 23rd Street, he would have observed the taxicab to his left in sufficient time to have avoided the collision. As to the duty of an operator of a motor vehicle at a crossing, it was said, in Spear and Company v. Altmyer, 124 Pa. Super. 9,14: "A driver approaching an intersection must not only look for cross traffic when he first reaches it, but must continue to look as he crosses in order to avoid a possible collision. The failure to perform this duty renders him contributorily negligent: Riley v.McNaugher, 318 Pa. 217, 178 A. 6; Shapiro et ux. v. Grabosky,320 Pa. 556, 184 A. 83; Stevens v. Allcutt, 320 Pa. 585,184 A. 85. The fact that such a driver is on a through highway, or otherwise has the right of way, does not relieve him of his duty of care at intersections: Bailey v. C. Lewis Lavine, Inc.,et al., 302 Pa. 273, 153 A. 422; Byrne et al. v. Schultz,306 Pa. 427, 160 A. 125." See also Rhinehart v. Jordan, 313 Pa. 197,200. Unusual conditions of the weather make it imperative that a driver pay extremely careful attention to the roadway:Hutchinson v. Follmer Trucking Co., 333 Pa. 424, 428. These principles of law apply to the drivers of fire patrols, as well as to the operators of other types of automobiles.

Fire patrol vehicles while acting in emergencies are exempt, under The Vehicle Code of May 1, 1929, P. L. 905, as amended, from restrictions as to speed [section 1002(f)], through "stop" highways [section 1016(d)] and traffic signals [section 1026 (d)]. However, the general restriction imposed upon the operators of such vehicles is merely that they may not drive in "reckless disregard of the safety of others": Reilly v.Philadelphia, 328 Pa. 563, 567. We said in Cavey v. Bethlehem,331 Pa. 556, 558: "What constitutes a reckless want of care on the part of the operator of a motor vehicle varies with the circumstances of the particular case. In the Restatement, Torts, section 500 (p. 1293), it is set forth that a person has acted in reckless disregard for the safety of others 'if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.' " Certainly, the action of the driver of the fire patrol vehicle in approaching the intersection, under the circumstances here present, without looking to his right or left, created a situation of grave peril to all persons and vehicles approaching the Parkway from 23rd Street. In so doing, obviously Magan drove in "reckless disregard of the safety of others" and greatly contributed to this accident. While the driver of a fire patrol vehicle, when speeding to a fire and when audible signal of his approach is given, cannot be held to the same duty as an operator of another type of automobile (Rommel v. American Stores Co.,103 Pa. Super. 384, 386); nevertheless, even though he may have the right of way, he cannot escape responsibility by merely opening his siren or ringing his gong and rushing madly through a crossing totally oblivious of cross traffic. Relative to the care required of drivers of fire department vehicles, it is stated, in Berry, The Law of Automobiles, Sixth Ed., Vol. 1, § 1055 (p. 901): "A 'right of way' over city streets does not do away with the requirement that reasonable care shall be exercised at all times. It is necessarily subject to the preservation of the safety of those who may be lawfully upon the streets, and while the emergency in the case of fire apparatus justifies speed in driving to the scene of the fire, such speed must be exerted with reasonable care and due regard for the lives and limbs of those who may be met upon the way. Hence, the chief of a fire department, who was injured while driving to a fire in an automobile, by collision with a salvage corps truck at a street intersection, was bound to look for approaching vehicles as he neared the intersection, and to exercise reasonable care generally [citing Farrell v. Fire Ins.Salvage Corps, 189 A.D. 795, 179 N.Y. Supp. 477]".

Therefore, I dissent from the opinion of the majority in granting a new trial to Magan and Fire Insurance Patrol of the City of Philadelphia, since these two appellants obviously did not present a cause of action clear of contributory negligence.

As to the other appellants, James Grimes and George Rothman, who were fellow employees of Magan riding in the hear of the fire patrol truck, I am satisfied that they should be granted a new trial, for there is nothing in the testimony to show that they had any voice in the selection of the driver or in the manner in which the fire truck was operated. The negligence of Magan, the driver, under such circumstances, could not be imputed to them. In this connection, it is stated, in Berry, The Law of Automobiles, Sixth Ed. Vol. 1, § 631 (p. 507): "Where plaintiff and another were riding upon the rear of a truck which was being driven at a high rate of speed to a fire, and plaintiff had no voice in the selection of the driver, and no control over his actions or the speed of the truck, but was required by his duties to mount thereon and proceed to the scene of the fire upon an alarm being given, and render such assistance as was possible, and while riding thereon a collision occurred between said truck and a street car, resulting in injuries to plaintiff, the negligence, if any, of the driver of said truck could not be imputed to plaintiff. [citing Norwood Transp. Co. v. Crossett, 207 Ala. 222,92 So. 461; Donoghue v. Holyoke St. R. Co., 246 Mass. 485,141 N.E. 278; Grand Rapids v. Crocker, 219 Mich. 178, 189 N.W. 221;Oklahoma R. Co. v. Thomas, 63 Okla. 219, 164 P. 120; Burleighv. St. Louis Transit Co., 124 Mo. App. 724, 102 S.W. 621]".

For these reasons, I would affirm the action of the learned court below in its refusal to take off the nonsuits as to Thomas Magan and Fire Insurance Patrol of the City of Philadelphia, and would reverse the judgment as to James Grimes and George Rothman and grant them new trials.