On appeal from the Supreme Court.
For the defendant-appellant, Starr, Summerill & Lloyd and Samuel P. Orlando (Frank T. Lloyd, Jr., of counsel).
For plaintiffs-appellees, Edward J. Inglesby and William F. Quinlan (of the Pennsylvania bar).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Supreme Court in favor of the appellee, Henry Kwiatkowski, against the appellant, Camden County Beverage Company.
On July 29th, 1942, about 4:45 P.M., appellee and four other men were riding as passengers in a Packard sedan owned and operated by Frank Lacki, from the plant of the New York Ship Building Company in Camden County, where they were all employed, en route to Philadelphia where they lived. The Packard car was proceeding northerly along Fourth Street, Camden. Fourth Street is an asphalt surfaced road about thirty-three feet in width and has a crown. It was raining and the streets were slippery. When the Packard car had reached a point about half way between Jackson Street and Lansdowne Avenue, a truck belonging to appellant and operated by one of its employees, coming south on Fourth Street collided with the Packard car, resulting in damage to both vehicles and personal injuries to the six occupants of the Packard car. Frank Lacki brought suit in the Supreme Court against the appellant for injuries to himself and damages to his car. The five passengers, including appellee, sued for compensation for personal injuries, all alleged to have been caused by the negligent operation of the truck by appellant. An answer was filed by appellant denying that the collision was caused by its negligence and alleging that the
plaintiffs were guilty of contributory negligence, and setting up a counter-claim against the plaintiff Frank Lacki, alleging that his negligent operation of his Packard sedan was the cause of the collision and as a result thereof appellant's truck was damaged and it was deprived of the use thereof for a long period of time.
The cases were tried together before the late Judge Palmer and a jury at the Camden Circuit and resulted in verdicts for all the plaintiffs against the appellant and a dismissal of appellant's counter-claim against Lacki. All the judgments entered on these verdicts were paid with the exception of the judgment in favor of the appellee. A rule to show cause was granted in his case based on the question of damages only and reserving exceptions. This rule was subsequently discharged and appellant thereupon took this appeal.
Both appellant and appellee say that there is but one question before this court on appeal; namely, "Was the trial court justified in taking away from the jury the right to determine the contributory negligence of the appellee."
The matter is presented here on exceptions to the court's charge which took the defense of contributory negligence on the part of the appellee and the other four passengers out of the case.
In support of these exceptions appellant cites in its brief three paragraphs from the court's charge. It will suffice to set forth the first only of these paragraphs, which, quoted in full, is as follows:
"Now, the defendant presents two defenses to this suit. First, it says that its driver was not negligent, and secondly, that the driver of the other car, Frank Lacki, was guilty of what we call contributory negligence. Our law provides that where one by his own negligence has contributed to his injury in such a way that but for his own negligence the injury would not have occurred, that person cannot recover. Now, that rule with regard to contributory negligence has application in this case only so far as the plaintiff Frank Lacki is concerned. As to the other plaintiffs, I ...