Hand v. Bailey

Opinion by

Orlady, P. J.,

The plaintiff below recovered a verdict in this case against the defendants, representing damages they sustained by reason of a collision of a delivery autotruck operated by an employee of the defendants with an automobile owned by the plaintiffs. The accident occurred at 5:30 p. m., on a public street in the City of DuBois. Owing to a property owner burning dead leaves along the curb of the street, a great volume of smoke was produced and prevented the drivers from having a clear view in front of them. Each had the right to use the street, with’ due regard to the right of like users. The speed at which the defendants’ truck moved, the opportunity of the chauffeur to see, his caution in going through the smoke barrage and proceeding at a high rate of speed, and other circumstances detailed by the witnesses, presented facts that were disputed, and could only be solved by a jury. The importance of ascertaining the proximate cause of the injury was fully and fairly submitted under the rules laid down in a number of Supreme Court cases: Boggs v. Jewell Tea Company, 266 Pa. 428, and authorities therein cited.

The defendants’ driver had full control of the situation. The jury were fully warranted in finding that had he proceeded at a lower rate of speed, even though his view was obstructed by the smoke, the accident would not have occurred. The liability of the abutting property owner is not before us, and the verdict returned by the jury was fully warranted by the testimony. The controversy could not be decided as a matter of law, and we see no reversible error in its submission to the jury.

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