Mumbower v. Weaver ( 1925 )

Argued February 2, 1925. In this action of trespass to recover damages for the death of her husband in an automobile accident, plaintiff met with a judgment resulting from the refusal to take off a nonsuit, from which she appeals.

Plaintiff, her husband, their son who was driving the automobile which belonged to decedent, and two other passengers therein, were proceeding along Linden Street in the City of Allentown about ten o'clock at night, when the car struck a rope which had been stretched across the street by defendant, who was engaged in repairing the highway. The contact resulted in the husband's death.

At trial, a compulsory nonsuit was entered and there was a refusal to take it off. The reason for refusal given by the judge below was that the record fails to show that defendant was an independent contractor. From this it is evident the court thought that in order to recover it was incumbent on plaintiff to establish this fact. Such is not the law. Had the city been sued, it might have been in position to answer that it was not responsible, because the present defendant was an independent contractor, but whatever his relation was with the municipality, he is responsible for a tort committed by him: Eckert v. Merchants Shipbuilding Corp., 280 Pa. 340, 347.

Appellee argues that even if the court was mistaken in its understanding of the above principle of law, plaintiff was blocked in recovery, because of her husband's contributory negligence, calling attention to the established rule that we do not review the reasons for judgments. If the judgment be right, even though the reasons given wholly fail to sustain it, or would logically lead to a different one, it must stand: State Hospital for Criminal Insane v. Consolidated Water Supply Co., 267 Pa. 29, 39; Com. to use v. Wing, 253 Pa. 226, 230; Corgan v. Lee Coal Co., 218 Pa. 386, 392; Brew v. Hastings,206 Pa. 155, 161. We recognize the principle adverted to, but are unable to conclude, under the facts disclosed by the record, that the deceased was clearly guilty of contributory negligence.

The street on which the accident occurred was under repair by defendant. He caused some red lights to be placed in certain parts of it, a red flag, and signs warning that the street was under repair and closed. It was dark at the time of the accident. Plaintiff's evidence indicates that defendant did not block off the entire street, but that one side of it was open for travel, that the warnings so indicated, and that the open part of the street was used by others to go to a gasoline filling station. The warning signs, so it was testified, were torn and not easily seen and no light was hung on the obstructing rope, which further along was stretched across the entire street. Under this state of facts, we cannot say plaintiff's decedent was guilty of contributory negligence as a matter of law in proceeding along that part of the highway which was apparently open to public travel. The court erred in entering the judgment of nonsuit.

The assignments of error are sustained and a new venire awarded.