27 A.2d 35 | Pa. | 1942
These appeals involve two actions in trespass arising out of the collision of a truck belonging to Goldstein's *260 Fruit Produce, Inc., appellant, with an automobile in which appellees, Miriam Kotlikoff and Sue Dershawitz, together with three other girls, were riding as guest passengers. The driver of the automobile, Bernard Master, died as a result of the accident, as have also two of the girl passengers, and the surviving three of the occupants of the Master car, among whom are the appellees, sustained personal injuries. To recover for her injuries, Miriam Kotlikoff brought suit against Jeanne Master, administratrix of the deceased driver of the automobile, and a separate action was instituted by Sue Dershawitz against both Goldstein and Master's administratrix. In the action against her alone, the administratrix brought Goldstein and the driver of its truck, one Vernon Ford, upon the record as additional defendants, but Ford was subsequently eliminated as a party defendant by stipulation of counsel. The two actions were tried together before the court below and a jury, with the result that verdicts were rendered against Goldstein and in favor of appellees, Dershawitz and Kotlikoff, in the sums of $8,500 and $1,500, respectively, and a verdict was returned for Master's administratrix in each case. Motions for judgments non obstante veredicto filed by Goldstein were overruled by the court en banc, and we now have these appeals from the judgments entered in accordance with the verdicts.
The collision took place at a point along the Lincoln Highway, west of Devon, Chester County, on a hill sloping to the east, commonly known as Devon Hill. At the time of the accident, about 6:15 in the morning of January 15, 1940, the Master car was proceeding in a westerly direction, in the northernmost lane of the four-lane concrete highway, and the Goldstein truck was traveling eastward, in the southerly eastbound lane. Daylight was just breaking and the temperature was freezing in the vicinity of Devon Hill, with the result that a rain which had fallen was frozen to form a "pretty thick" layer of ice on the highway, extending from a point fifty feet west *261 of the crest of the hill to a point some distance beyond the bottom of the hill, to the east. Other than at this point the highway was free of ice but was wet for miles in both directions. Devon Hill is approximately two-tenths of a mile in length and curves slightly to the north, or to the right as one proceeds westward, but not sufficiently to obstruct the view of the entire grade. As the Master car neared Devon Hill, it was driven into the southerly westbound lane, for the purpose of overtaking and passing a milk truck it had been following, and at about the same time Goldstein's five-ton truck, with panel-type body, came around the curve at a speed estimated by appellees' witnesses to be forty-five to fifty miles per hour, fifteen to twenty miles per hour in excess of the statutory speed limit for this type of vehicle. After rounding the curve, the truck proceeded normally, in the southerly eastbound lane, for a distance of about 100 feet, then skidded and wavered between the southerly and northerly eastbound lanes for a distance of about 200 feet, and passed across the center line of the highway, into the southerly westbound lane, where it collided with the Master car, near the bottom of the hill, as it was in the act of overtaking the milk truck. Both vehicles burst into flames, with the unfortunate results already stated.
Evidence as to the excessive speed of the Goldstein vehicle, as it descended Devon Hill, was given by Sue Dershawitz, one of the appellees, and a wholly disinterested witness, one Dickerson, both of whom were permitted to testify to that fact over objection. It is urged that this testimony should have been excluded, on the ground that the witnesses "were not in such a position as the law requires to make them competent persons to compute or estimate the speed of the truck", and that with the evidence of excessive speed eliminated the case falls within the decision in Master v. Goldstein's Fruit Produce, Inc.,
Appellant's contention that the testimony of Dickerson as to speed should have been excluded, because the conditions for observation were not sufficiently favorable to make him a competent witness, is fundamentally unsound, for the reason that it is based upon a view of the conflicting evidence as to what such conditions were which assumes the truth of that favorable to its contention and entirely ignores the evidence in favor of the appellees. Viewing the evidence in the light most favorable to appellees, and resolving all conflicts therein in their favor, as we are required to do in view of the verdicts of the jury (Borits v. Tarapchak,
While it may be that the testimony given by the witness Dershawitz, who was riding on the front seat of the Master car, that the truck was traveling at a speed of forty-five miles an hour from the time she observed it, "about a city block away", until the accident occurred, would not, of itself, be sufficient to sustain a finding of excessive speed, in view of her admission that when she saw the truck for the first time "it was already zigzagging down the hill" and was then "apparently out of control", we think it was proper for consideration by the jury in connection with the other evidence in the case. Both Dickerson and one Sheeler, driver of the milk truck which the Master car was attempting to overtake and a principal witness for the appellant, although they differed in their estimates as to the speed of the Goldstein truck, testified that it maintained the same rate of speed after it became out of control, without increase or decrease, as when it was proceeding normally. In Wenhold v. O'Dea,
Were we to hold, contrary to the conclusion above stated, that the evidence of excessive speed should have been excluded as incompetent, appellant would still not be entitled to judgments non obstante veredicto. In Stevenson v. Titus,
The remaining contention, that excessive speed, even if sufficiently established, was not the proximate cause of the accident, hardly merits serious consideration. It is fully answered by the decision in Knoble v. Ritter,
In the Master case, supra, the evidence, which did not include the testimony of either of the witnesses to excessive speed in the present case, fixed the speed of the Goldstein truck, as it descended Devon Hill, at fifteen to twenty miles an hour. Moreover, the testimony in that case, all of which came from the plaintiff's own witnesses, established that there was no ice at any point on the highway except on the surface of the hill. In short, the evidence there adduced proved merely that the truck skidded and nothing more, whereas the record here is much fuller. As the opinion of the court below states: "In addition to the testimony as to skidding, there was evidence that Ford, the driver of the Goldstein truck, was thoroughly familiar with the road; that it had rained earlier and that the weather was freezing; that the layer of ice on the highway at the point in question extended approximately fifty feet west of the top of Devon Hill; and, in contradistinction to the testimony in the Master case, that the Goldstein truck had been traveling at a speed of forty-five to fifty miles per hour." Although it is possible that the true facts are as testified by the witnesses at the trial of the Master case, it is equally conceivable that the version given by the witnesses in the present case is the correct one. However this may be, we must abide by the present record as containing the only evidence for examination, and so doing there is evidence in addition to the fact of skidding sufficient to form the basis of a reasonable inference of lack of due care on the part of the driver of the Goldstein truck, for the consequences of which it is responsible: Knoble v. Ritter, supra.
Judgments affirmed. *268