190 Pa. Super. 597 | Pa. Super. Ct. | 1959
Opinion by
On December 29, 1955, at about ten o’clock p.m., on Eoute 422 near Trappe, Pennsylvania, there was a collision between a tractor-trailer of Highway Express Lines, Inc., and a tractor-trailer of General Baking Company. A complaint in trespass was filed by Highway Express Lines, Inc., to which General Baking Company filed an answer with counterclaim. The trial resulted in a verdict for the plaintiff in the sum of $4,456.14, and also for plaintiff as to the counterclaim. General Baking Company filed a motion for a new trial, alleging error in the charge of the trial judge. This motion was dismissed, and judgment was entered on the verdict. General Baking Company has appealed.
The record discloses that the collision occurred some 250 feet east of the intersection of Eoute 422 by
Schaeffer and Early were the only witnesses at the trial. Schaeffer testified for the plaintiff that, as he approached the intersection, the light was green “and as I got on through, the light, shown on the ice and also in the rear-view mirror, that the light Avas turning amber, Avhich would have been a red light for the opposite traffic coming toAvards me ... As I looked down the road there was a tractor and trailer coming up, which I thought he applied his brakes and went out of control and come over on my lane”. Schaeffer further testified that he could not go to the right or south side because of an embankment, “so I went to the left, remembering it was a dirt road, trying to get around him”. However, appellant’s trailer “whipped around and hit the right front of my tractor”. Early
The portions of the charge of the trial judge to which appellant took specific exception, and which are the subject of attack upon this appeal, read as follows: “You should have no difficulty whatever with the claim of the General Baking Company, because you should there find a verdict for the Highway Express Lines . . . Both drivers knew or should have known the ice was there, so that when Early skidded and jackknifed and came over on his wrong side of the road, why he would be guilty of negligence. It was his duty to so control the car that that wouldn’t happen ... You should, therefore, find a verdict for the Highway Express Lines as to the counterclaim of the General Baking Company . . . Now, as I said before, you will have no difficulty with the claim of General Baking Company. The driver of the General Baking truck was negligent and, as a matter of law, you should find against him, because under the law, he was negligent and he cannot recover”. The respective property damages were agreed upon, and the sole issue submitted to the jury by the trial judge was the question of negligence on the part of Schaeffer.
Both the opinion below and the brief for appellee stress the point that Early actually did not say that
In conclusion, it is apparent that the trial judge erred in charging that Early was guilty of negligence as a matter of law. Under the circumstances of the instant case, the question of Early’s negligence was an issue of fact for determination by the jury.
Judgment reversed with a venire.
“Q. Will you explain to the jury, and to me for that matter, what you mean by a trip-light? A. AVhen a car goes over a rod that’s imbedded in the road the light changes automatically. Q. And, that trip-light control is on Township Line Road, I suppose, and not on 422? A. On Township Road”.
In Richardson v. Patterson, 368 Pa. 495, 84 A. 2d 342, the entry of a compulsory nonsuit was approved because the plaintiff in his ease in chief proved that defendant’s automobile was on the wrong side of the highway due to skidding, and plaintiff did not go further and prove that the skidding resulted from the negligent act of the defendant. There was a persuasive dissent in that case, and the ease was discussed and distinguished in Nixon v. Chiarilli, supra, 385 Pa. 218, 122 A. 2d 710.