172 A. 102 | Pa. | 1934
Argued March 19, 1934. Plaintiff appeals from the action of the court below in entering judgment for defendants upon an affidavit of defense in the nature of a demurrer, in an action of trespass to recover damages for personal injuries. Plaintiff, one of about thirty workmen riding on the rear platform of a truck owned by defendant Lee, was injured at the time the machine collided with an automobile belonging to defendant McNally. Suit was instituted against the owners of both cars. The accident occurred in the Borough of Sharpsville, Mercer County, on a portion of Walnut Street which was being repaired on the day in question. *32 The negligence of defendant Lee alleged in the statement of claim was, "(a) That the said Lee Supply Company truck was being operated in an illegal manner in that they permitted the said truck to be overloaded contrary to the acts of assembly of the State of Pennsylvania." The court below took the position that the statement of claim did not present a case in which plaintiff was free from contributory negligence, inasmuch as it averred that plaintiff's injuries resulted from his helping to overload the truck by being present thereon. No opportunity was allowed plaintiff to remedy this defect by amending his statement of claim.
Our cases, since Rhodes v. Terheyden,
The same considerations apply to the case now before us and make it imperative that the record be remitted to the court below for the purposes already indicated in this opinion.
The judgment is reversed and the record remitted to the court below with instructions that plaintiff be given an opportunity to amend his statement of claim. *33