163 A. 533
Supreme Court of Pennsylvania.October 5, 1932.
November 28, 1932.
Negligence — Automobiles — Embankment — Signals.
1. In an action for death of plaintiff’s husband who was riding at the time of the accident in an auto driven by defendant, a judgment on a verdict for defendant will be sustained where the evidence tends to show that the accident occurred on a dark night, when the car driven at moderate speed fell over an embankment where a bridge was being constructed, where no warning signals nor barriers were near the embankment, and where there was uncertainty as to whether such signals as were displayed were so erected as properly to reflect the lights of an approaching vehicle, and further, that defendant was not familiar with the locality. [284-5]
Practice — New trial — Discretion — Abuse — Appeal.
2. A new trial will not be awarded where there is no abuse of discretion by the court in refusing it. [285]
Argued October 5, 1932.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Page 284
Appeal, No. 135, March T., 1932, by plaintiffs, from judgment of C. P. Indiana Co., Sept. T., 1930, No. 127, on verdict for defendant, in case of Andrew Gordish, by his mother or next friend, Anna Gordish, and Anna Gordish, in her own right, v. Harry Steffinina. Affirmed.
Trespass for death of plaintiff’s husband. Before LANGHAM, P. J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for defendant. The court refused to grant a new trial. Plaintiffs appealed.
Error assigned was order refusing new trial, quoting record.
Edward J. Harkins, of Scanlon Harkins, for appellants.
Robt. M. Fisher, with him W. M. Ruddock, for appellee.
PER CURIAM, November 28, 1932:
This was an action of trespass to recover damages for the death of plaintiff’s husband from injuries received in an accident which occurred while decedent was riding as a guest in an automobile driven by defendant. The jury’s verdict was for defendant, and upon the refusal of the lower court to award a new trial, plaintiff appealed.
The evidence discloses that the car driven by defendant plunged down a steep embankment and into a stream at a point where a new bridge was under construction on the state highway between the villages of Shelocta in Indiana County and South Bend in Armstrong County. The accident happened between ten and eleven o’clock on a dark night. Defendant was not familiar with the road and was driving his car at a moderate rate of speed.
Page 285
There was neither warning light in front of the partially constructed bridge nor barricade or other obstruction across the road. The only indications of the dangerous situation were a detour sign placed approximately a quarter of a mile away, another sign nearer the place of accident which read, “Pavement ends 300 feet ahead,” and a red reflector 50 or 60 feet from the end of the road. There was uncertainty as to whether this final warning sign was erected so as to properly reflect the lights of an approaching vehicle.
Under these circumstances, the question as to defendant’s negligence was for the jury and was left to them under proper instructions: Filer v. Filer, 301 Pa. 461, 465. The award of a new trial rested within the sound discretion of the lower court and the record discloses no abuse of that discretion: Rose v. Adelphia Hotel, 300 Pa. 1.
Judgment affirmed at appellants’ cost.