Opinion by
On January 7, 1959, about eleven a.m., a tractor trailer loaded with fuel oil collided with a section of the Pencoyd Viaduct, a bridge forming a part of the SchuylMll Expressway, in Montgomery County, Pennsylvania, causing substantial damage to the bridge construction. Alleging that the negligent operation of the tractor trailer was responsible fоr the accident, the Commonwealth of Pennsylvania, Department of Highways, instituted this action for damages against Eldridge, the operator; Trego, the owner of thе tractor; and the Leaman Transportation Corporation, owner of the trailer.
After a trial, lasting two weeks, the jury returned a verdict for the defendants. Plaintiff’s mоtions for judgment notwithstanding the verdict and a new trial were denied. From the judgment entered upon the verdict, the plaintiff appeals.
Plaintiff’s contention is that trial errors require the grant of a new trial. Under the proof, the tidal court could not legally have directed a verdict for the plain
Salient portions of the testimony may be fairly summarized as follows: On the day in question, the tractor trailer, traveling in normal fashion in a westerly dirеction on the expressway, suddenly went out of control, ricochetted off the curbing and railing of the bridge, caught fire, causing substantial damage to the vehicle аnd the bridge. There were no known eyewitnesses to the incident except the operator of the vehicle.
The plaintiff offered in evidence the testimоny of an officer of the Pennsylvania State Police, who arrived on the scene shortly after the occurrence. He described, the condition and pоsition of the vehicle and the roadway; skid marks leading from the wheels of the truck eastward for approximately 200 feet; how he questioned the operatоr, Eldridge, who told him that about a mile east from the collision scene the truck suddenly pulled to the right as if it were going out of control; that the unit bumped up and down; that he did nоt stop or slow the vehicle to determine the cause of the pull; that the truck continued to travel at about 45 miles per hour and 10 or 15 seconds after entering the bridge, the truck again pulled to the right and despite efforts to control it, collided with the bridge curbing and slid down the walk until it came to a stop. This was the plaintiff’s case as to liability and was sufficient to render the question of the operator’s negligence one for the jury.
The defendants called as a witness the operatоr, Eldridge. He testified that just as the vehicle arrived on the bridge,
1
he felt a roll in the truck and it sort of bumped in the air; that he immediately brought it under control and about one-half of the distance down
Evidence was also introduced to show that the vehicle was last thoroughly inspected before the occurrence, on November 28, 1958, and found to be in apparent excellent operating condition; that after the accident an examination disclosed the steering apparatus to be locked fast in a left position and the right front spring hanger of the trailer broken and detached.
A metallurgical expert, who subsequently examined the right spring hanger of the trailer found the existence of a small piece of slag or foreign substance in the steel casting; he opined that this inadvertently becаme lodged therein at the time of construction when the molten steel was poured into the mold, thereby leaving a weakness; that the steel subsequently cracked so slightly and in such a manner that it would not be observable to the naked eye; and, that an impact with a bump in the road had caused the already weakened spring hanger to break through the outside flange; that the increased weight broke the inner flange, and all of this resulted in the front axle of the trailer shifting sideways causing the steering apparatus to go out of control.
Testimony was also introduced to show the existence of a “bump” in the roadway immediately at the easterly entrance to the bridge. This was described as a dip in the concrete slab approaching the bridge caused by a slight sagging after the pouring of the concrete at the time of construction.
The defense was, therefore, that the defendants were not responsible for the accident because it was primarily cаused by the existence of a latent defect or weakness in the right spring hanger of the trailer which broke due to the sudden impact of the wheels with the
A. study of the record indicatеs that a new trial is required. Several times in the instructions to the jury, the trial court emphasized that if the highway department were guilty of negligence that contributed to the occurrence, this, in itself, required that the verdict of the jury be for the defendants. Not in a single instance was it stated, or even hinted, that the burden of proving the existencе of such negligence was upon the defendants. Under the singular facts this case presents, this was a significant omission. If the issue of contributory negligence were in the сase, the facts required clear instructions on this point. As stated in
Pleasant v. Carr,
However, and more importantly, the proof did not warrant a finding of negligence upon the part of the plaintiff. The testimony was to the effect that the roadway, as it approached the bridge, ran at a three and one-half per cent downgrade; The slope of the bridge was at the same level. An expert witness testified that several elevation readings indicated that immediately before reaching the bridge deck, there was
The law does not require a municipal corporation to maintain its public roads in perfect condition. It is not an insurer:
Koch v. White Haven Borough,
Judgment reversed and a new trial ordered.
Notes
He admitted that this did not coincide with what he had told the investigating officer, but explained the discrepancy was due to his emotional excitement.