Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.
This is an appeal from a judgment of dismissal entered in the Law Division of the Superior Court.
The accident occurred on December 3, 1945, in the City of Philadelphia. Plaintiff boarded a bus of the defendant company between Ninth and Tenth Streets in Philadelphia. The bus was crowded with other passengers and plaintiff was required to stand, holding on to the back of a seat. She testified that the driver was looking into the rear view mirror and urging the passengers to move back. She stated that he kept looking in the mirror while the bus was moving and then "came to a very severe stop." The plaintiff and other passengers were thrown to the floor and plaintiff was injured.
Other witnesses testified that while the bus was moving slowly, a woman, leaving a trolley car in front of the bus, crossed the street in front of the bus, and the driver of the bus brought the vehicle to a sudden stop. The woman was approximately the length of a trolley car in front of defendant's bus when she alighted. There was also a distance of about three bus lengths between defendant's bus and a bus in front of it. All of the witnesses agreed that the stop was very sudden and that many others were jarred and some
thrown to the floor. They did not observe what the driver was doing immediately prior to the accident.
At the conclusion of plaintiff's case on the question of liability, defendant moved for judgment under amended Rule 3:50 on two grounds; first, that the plaintiff failed to prove that the stop was of such severity as to come within the applicable Pennsylvania law which would allow the court or jury to infer negligence in the operation of defendant's bus; second, that the driver was faced with a sudden emergency in which he was guilty of no negligence.
The Court denied the motion on the first ground because there was evidence establishing that the occurrence was of an unusual and extraordinary character. This was established by evidence of its effect on other passengers. This is sufficient under Pennsylvania law. See Smith v. Pittsburgh Rys. Co. , 314 Pa. 541, 171 A. 879 (Sup. Ct., Pa. 1934).
However, the Court granted the motion on the second ground and it is the judgment entered pursuant thereto from which plaintiff appeals.
In view of the fact that the accident occurred in the City of Philadelphia, the law of the Commonwealth of Pennsylvania governs the plaintiff's right to recover. Friedman v. Greenberg , 110 N.J.L. 462 (E. & A. 1933).
It is well established in Pennsylvania law that where one is confronted by a sudden emergency, so that he does not have the opportunity to act with the judgment that one ordinarily may exercise, he is held in law only to the exercise of his best judgment under the circumstances. Schu v. City of Pittsburgh , 341 Pa. 324, 19 A.2d 409 (Sup. Ct., Pa. 1941); Mulherin v. Brown et al. , 322 Pa. 171, 185 A. 304 (Sup. Ct., Pa. 1936).
It has frequently been stated by the Pennsylvania courts that the sudden emergency rule will not apply, if the emergency arises through the prior negligence of him who seeks the protection of the rule. Montgomery v. City of Philadelphia , 270 Pa. 346, 113 A. 357 (Sup. Ct., Pa. ...