Bell v. Jacobs , 261 Pa. 204 ( 1918 )

Opinion by

Mr. Justice Walling,

This is an action of trespass for alleged negligence resulting in the death of plaintiffs husband. Spring street extends through the City of Reading in an easterly and westerly direction and passes under the tracks of tbe Philadelphia & Reading Railway by a rightangle subway. The paved roadway of the street is of the width of forty-two feet and descends sharply to the east as you approach the subway from the west. On May 20, 1916, plaintiff’s husband rode his motorcycle west on this street, and, after passing through the subway, met defendant’s automobile coming down the grade and the vehicles collided, causing the death of Mr. Bell. The evidence was conflicting ; that for plaintiff tended to show that the automobile was moving'at high speed and on the left or north side of the street, and that the deceased was driving carefully and kept to his right according to the rule of the road. Evidence for defendant (appellant) was to the effect that his car was moving at moderate speed and on the right side of the road and that the deceased came at high speed, with his head down and moving in a zigzag course, and ran into defendant’s car on the south side of the street after it had come to a stop. Under the charge of the court, the verdict established the truth of plaintiff’s contention. It was in the daytime and the vehicles were in plain sight of each other for over three hundred feet, so the collision could not be termed unavoidable; but whether it resulted from the fault of the deceased or of the defendant or of both depended upon conflicting evidence and was for the jury. Each had the right to assume that the other would use due care; and it could not be declared as a matter of law that the deceased was, or that the defendant was not, guilty of negligence. Defendant had secured Mr. Fink, an expert workman, to make some repairs to the automobile, and, before leaving it at the repair shop, they were taking it for a drive to see what was needed. Fipk was acting as chauffeur and defend-. ant sat beside him, but made no request or suggestion as to the driving of the car. It was defendant’s, car and he ' acquiesced in what Fink, who was acting for him, did, and cannot be excused because he was not personally at the wheel. A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driven. There is a presumption, not here rebutted, that an owner present in his car has power to control it.

There were other elements of negligence charged, aside from being on the wrong side of the street; hence, the trial judge properly refused to charge that the verdict must be for the defendant if the jury believed he was on the south (right) side of the street at the time of the accident. One may not drive recklessly or with undue speed even on his own side of the street, nor necessarily escape liability for an accident because of that fact. It is quite possible that defendant came down on the north side of the street and turned to the south side too late to avoid the accident.

It was a controverted question which vehicle collided with the other, therefore the points which assumed that the motorcycle ran into the automobile were properly declined. A request which assumes the existence of disputed facts cannot be granted.

The city ordinance requiring all vehicles to keep to the light of the center of the street in the direction in which they are going was properly admitted'in evidence. While such ordinance is not per se evidence of negligence it may be considered in connection with the evidence in the case: Foote v. American Product Company, 195 Pa. 190; Lederman et ux. v. Penna. R. R., 165 Pa. 118. Section 13 of the Act of July 7,1913, P. L. 672, requiring the driver of a motor vehicle, when overtaken, to turn reasonably to the right of the center of the highway allowing the other vehicle free passage to the left, does not change the rule of the road, nor conflict with the ordinance in question. A regulation requiring vehicles to keep to the right of the center of the street may be practicable in cities but not in country districts, while the rule of turning out to the right applies to both.

We will not review the action of the court below in refusing a new trial, except in case of manifest abuse of discretion.

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