Davin v. Levin

Decided October 1, 1947

Good law ✅— No negative treatment on recordhow we know

Decided 1947-10-01

How this case has been cited

Cited by 17 later decisions — most recently September 1968

2 federal appellate · 13 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Pee Curiam,

¶1 The. judgment is affirmed on the opinion of Judge O’Toole of the court below.

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Case posture

Posture: Appeal, No. 160, March T., 1947, from judgment of C. P., Allegheny Co., July T., 1946, No. 2735, in case of Delia Davin, Admrx., Estate of William M. Davin, deceased, v. Abe Levin et al., trading as Regent Square Bottling Works. Judgment affirmed. Trespass for wrongful death. The facts are stated in the opinion by O'TOOLE, J., of the court below, as follows: Plaintiff brings this action to recover damages for the death of her son who was killed when the truck he was driving was involved in a collision with a truck of the defendants. Plaintiff presented witnesses to describe the accident. The defendant presented no evidence. The jury disagreed and was discharged. The matter is now before us on defendants' motion for judgment on the whole record. The accident happened on a straight street 54 feet 4 inches from curb to curb, surfaced black asphalt, smooth and slippery when wet. Double street car tracks are in the center of the street, with space for two lanes of traffic on either side of the tracks. It had been raining for some time before the accident. Defendants' truck was moving eastwardly at a speed of 25 miles an hour with the front wheels on the wet steel rails and the rear dual wheels swerving. The truck remained on the rails for a hundred yards when suddenly it swerved to the left, ran across the street out of control and came to rest with the front wheels against or on the left curb and the rear wheels out in the street but at a slight angle to the east. It was struck almost immediately by the truck driven by the deceased, which was only 6 feet away when the defendants' truck hit the curb. The decedent's truck was moving westward, 4 to 5 feet from the north curb. Plaintiff's principal witness described the defendants' truck as having "skidded" across the street, but it is not clear from his testimony where the skid began, whether on the rails, during the plunge across the wet asphalt or just as the truck hit the curb, although a jury could easily have found it to be the last, considering the eastward position of the rear wheels, when the truck came to rest. The fact that an automobile was on the wrong side of the street makes out a prima facie case of negligence. Defendant here seeks to escape this rule because of plaintiff's testimony that the truck skidded to the left, invoking the rule that a driver is excused when he gets to the left side of the road solely because of skidding for which he is not to blame. This position falls for two reasons. First, because under all the testimony it was a jury question whether the skidding caused the truck to swerve to the left or whether the swerve to the left caused the skidding. Second, while skidding itself is not negligence, it can be and often is the result of negligence. If defendants' lack of reasonable care caused the skid he is liable even though it was skidding that carried him across the center line and into the collision. In this case this likewise was a jury question. It was raining and the street was wet and slippery, yet with no reason for doing so defendant elected to run on the wet rails for a distance of a hundred yards at a speed of 25 miles an hour. Certainly in usual circumstances 25 miles an hour is not a dangerous speed even on a wet street, but it requires no argument to convince anybody who drives a car that one who drives on wet rails can anticipate trouble whether he elects to stay on them or attempts to get off them. Such being his anticipation he is required to run his truck at such slow speed and have it under such adequate control that he can execute the maneuver without harming others on the highway. And in this he is required to consider the wet and slippery condition of the adjacent asphalt pavement. On all the circumstances shown the jury could have found a lack of reasonable care and adequate control. Defendants appealed.

Source: CourtListener