## Facts

- Two automobiles collided in Westmoreland County, Pennsylvania.
- One vehicle was owned by Julia Smalich and driven by Felix Rush Westfall; Julia Smalich and her minor son, Michael Smalich, rode as passengers.
- The other vehicle was driven by Stephanna Louise Blank.
- Julia Smalich suffered fatal injuries; Michael Smalich was injured and later recovered.
- The estate and family filed trespass actions against Westfall and Blank, seeking wrongful death and survival damages for the estate and personal injury-related damages for the minor and guardian.
- A jury found for plaintiffs against both defendants and found Westfall’s negligent operation was a proximate cause of the collision.

## Issues

1. Whether the trial court abused its discretion in granting a new trial in the minor’s and guardian’s actions on the ground that the verdict was against the weight of the evidence and excessive.
2. Whether Westfall’s contributory negligence could be imputed, as a matter of law, to Julia Smalich as an owner-passenger plaintiff to bar the estate’s recovery against Blank.

## Decision

- The Supreme Court of Pennsylvania affirmed the order granting a new trial in the minor’s and guardian’s actions, finding no clear abuse of discretion.
- The court vacated the judgment notwithstanding the verdict entered for Blank in the estate’s wrongful death and survival actions.
- The court remanded the estate’s actions for further proceedings consistent with its rejection of automatic imputed contributory negligence against an owner-passenger plaintiff.

## Legal Principles

- A driver’s negligence is not automatically imputed to a passenger-plaintiff, even if the passenger is the vehicle’s owner.
- Contributory negligence may be imputed to a passenger only when the relationship between passenger and driver is such that vicarious responsibility is justified, principally:
  - a master-servant (agency) relationship, or
  - a joint enterprise with an equal right of control over the vehicle’s operation.
- Mere ownership of the vehicle and presence as a passenger, without the legally relevant right of control supporting agency or joint enterprise, does not bar the owner-passenger’s claim against a third-party tortfeasor.
- Appellate review of an order granting a new trial is highly deferential; reversal requires a clear abuse of discretion or an error of law.

## Conclusion

The court limited imputed contributory negligence in automobile cases by holding that an owner-passenger plaintiff is not barred from recovery against a third party based solely on the driver’s negligence, absent agency or joint enterprise, while also deferring to the trial court’s discretion to grant a new trial on weight and excessiveness grounds.


Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (Pa. 1970)