Noel v. Puckett (et al., Appellant)
Supreme Court of Pennsylvania
November 14, 1967
427 Pa. 328 | 235 A.2d 153
Argued March 15, 1967
Soldatos instituted an action of trespass against defendant Mandelbaum. Mandelbaum filed a counterclaim. The jury returned a verdict of $15,000 in favor of Soldatos against Mandelbaum, and on the counterclaim found in favor of Soldatos against Mandelbaum.
Defendant Mandelbaum thereafter filed motions for a new trial and for judgment n.o.v. These motions were dismissed and Judgments were entered on the verdicts. He thereafter appealed to this Court. His basic contention is that the verdicts were excessive and that this Court should grant a new trial or reduce the verdicts. The lower Court, in its Opinion stated: “Suffice to say that we are satisfied these parties are, under the law, entitled to their verdicts.”
We have carefully reviewed appellant‘s brief and have studied the record. We find no clear abuse of discretion or error of law which controlled the outcome of the case. Zeman v. Canonsburg Boro., 423 Pa. 450, 223 A. 2d 728; Amon v. Shemaka, 419 Pa. 314, 214 A. 2d 238; Trimble v. Merloe, 413 Pa. 408, 197 A. 2d 457; DeMichiei v. Holfelder, 410 Pa. 483, 189 A. 2d 882.
Judgments affirmed.
Mr. Justice MUSMANNO took no part in the consideration or decision of this case.
Robert M. Carson, for appellants.
Myron W. Lamproplos, with him Cassidy & Lamproplos, for appellee.
OPINION BY MR. JUSTICE JONES, November 14, 1967:
This appeal lies from a judgment entered, after a nonjury trial, upon a verdict in favor of Ronald W. Noel [Noel], and against Kenneth E. Puckett [Puckett], Kenneth Gnau [Gnau], and W. M. Tynan & Co., Inc. [Tynan], in a trespass action arising out of a motor vehicle accident.
Noel, a U. S. Marine, on December 20, 1958, was hitchhiking from Youngstown, Ohio, to his base at Quantico, Virginia. At the first exit on the Ohio Turnpike, he hitchhiked a ride on a tractor operated by Puckett, owned by Gnau and leased at the time to Tynan. At the time of the accident, Puckett was upon business of both Gnau and Tynan.1
Noel instituted a trespass action in the Court of Common Pleas of Westmoreland County against Puckett, Gnau and Tynan. After a nonjury trial before Judge SCULCO, a verdict for $14,500 was rendered in favor of Noel and against all three defendants. At the conclusion of Noel‘s case, counsel for Gnau and Tynan2 moved for a compulsory nonsuit upon the ground that no actionable negligence had been shown. Upon refusal of a compulsory nonsuit, no evidence was presented on behalf of Puckett, Gnau or Tynan. After rendition of the verdict, Gnau and Tynan moved for a new trial3 and, upon refusal of a new trial, judgment was entered upon the verdict.
While the issues raised on this appeal are enumerated as five actually only two basic questions are presented: (1) was there sufficient evidence of negligence to sustain the verdict? (2) did the court be-
In passing upon the propriety of the refusal of a new trial, our inquiry is whether the court below abused its discretion or committed an error of law which controlled the outcome of the case: Zeman v. Canonsburg Borough, 423 Pa. 450, 454, 223 A. 2d 728, 730 (1966); Gaita v. Pamula, 385 Pa. 171, 175, 122 A. 2d 63 (1956); Londrino v. Equitable Life Assurance Society, 377 Pa. 543, 544, 545, 105 A. 2d 333 (1954); Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 175, 101 A. 2d 638 (1954). Unlike the appellate review of a refusal to take off a compulsory nonsuit where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict-winner, ordinarily in reviewing the refusal to grant a new trial we view all the evidence: Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 68 (footnote), 132 A. 2d 255 (1957). In the case at bar, however, since the only evidence of record is that of the judgment-winner we necessarily view such evidence in its most favorable light.
In addition to his own testimony on the subject of liability, Noel produced one witness, W. K. Thompson. From the time Noel fell asleep some miles west of the situs of the accident until after the accident he had no recollection of what had happened. Thompson, an experienced Greyhound bus driver en route at the time in his own private motor vehicle from Cleveland, Ohio to Mount Pleasant, Pennsylvania, was proceeding in an easterly direction on the Turnpike. According to him, the highway was “clear and dry” and “visibility was very good.”4 He arrived at the scene of the accident very shortly after it occurred. When he arrived he saw the tractor lying upside down with its “wheels
Noel‘s theory of the accident is that the tractor had collided with the rear of the parked tractor-trailer. Noel avers Puckett was negligent in the following respects: (1) excessive speed in operation of the tractor; (2) failure to keep brakes, headlights and other mechanisms of the tractor in proper working order; (3) failure to keep a proper lookout ahead; (4) violation of state statutes and Westmoreland County ordinances pertaining to safe operation of motor vehicles; (5) violation of Interstate Commerce Commission regulations as to the number of hours an interstate motor vehicle operator is permitted to drive consecutively; (6) collision with the rear end of a parked motor vehicle. In addition to claiming they were vicariously liable for Puckett‘s actions, Gnau and Tynan were charged with negligence in: (1) failing to enforce the Interstate Commerce Commission‘s regulations, supra; (2) failing to hire a competent driver; (3) failing to relieve Puckett when they knew or should have known that he was fatigued and unable to operate the tractor.5
In Sajatovich v. Traction Bus Co., 314 Pa. 569, 574, 172 A. 148 (1934), this Court said: “There must be some evidence to indicate how the accident occurred. . . .” See also: Hulmes v. Keel, 335 Pa. 117, 119, 6 A. 2d 64 (1939); Lithgow v. Lithgow, 334 Pa. 262, 265, 5 A. 2d 573 (1939); Brooks v. Morgan, 331 Pa. 235, 239, 200 A. 81 (1938); Niziolek v. Wilkes-Barre Ry. Corp., 322 Pa. 29, 32, 185 A. 581 (1936). It was Noel‘s burden to produce evidence which “describe[d], picture[d], or visualize[d] what actually happened sufficiently to enable the fact-finding tribunal to conclude that the defendant was guilty of negligence and that his negligence was the proximate cause of the accident:” Lear v. Shirk‘s Motor Express Corporation, 397 Pa. 144, 149, 152 A. 2d 883 (1959); Lescznski v. Pittsburgh Rwys. Co., 409 Pa. 102, 106, 185 A. 2d 538 (1962).
How did this accident occur? While it is obvious that an accident occurred, it is the manner of happening of this accident that is difficult to ascertain from this record. Noel claims that the tractor driven by Puckett collided with the rear end of the tractor-trailer then parked off the highway and on the berm. The sole evidence of record is Thompson‘s testimony that
Although the mere happening of an accident does not prove that one of the parties was negligent, negligence may be inferred from the circumstances surrounding the accident: Bills v. Zitterbart, 363 Pa. 207, 209, 210, 69 A. 2d 78 (1949); Novak v. Neff, 399 Pa. 193, 159 A. 2d 707 (1960); Cuthbert v. Philadelphia, supra. In the case at bar, if Noel can prove by evidence, direct or circumstantial, that the tractor did collide with the rear end of the tractor-trailer combination while the latter was parked on the berm and off the highway, then clearly Noel will have presented a case where there is “a reasonable inference” of negligent conduct on the part of Puckett, the driver of the tractor.
In view of our conclusion that the court below abused its discretion in refusing a new trial, we need not consider whether the court below erred in refusing a continuance of the trial.
However, since this case must be retried and with a view to avoid further litigation, if possible, after such retrial, we will comment on a problem which will certainly be posed for the court upon such retrial, that is, Noel‘s status insofar as Gnau and Tynan are concerned. If Noel was invited to ride in the tractor by Puckett and if Puckett was then and there acting within the scope of his authority, express or implied, Gnau and Tynan would be liable to Noel if Puckett was guilty of negligent conduct in the operation of
In his complaint, Noel avers that Puckett was operating the tractor, that the tractor was owned by Gnau and leased by Tynan and that Puckett “was at the time an agent, servant or employee of [Gnau] or [Gnau and Tynan] and under the direct control of one or both“. (Paragraph Fifth). By reason of their failure to file a timely responsive pleading, under
On the retrial it will be Noel‘s burden to show that Puckett had authority, express or implied, to invite Noel to be a passenger on the tractor (Slother v. Jaffe, supra, pp. 243, 244) and upon Noel‘s ability to produce such proof will depend whether Gnau and Tynan are to be held liable only for wanton misconduct or for ordinary negligence. “The test is not that, when the invitation was given, he was engaged in the course of his employment in his master‘s business, but was the invitation or its consequences in furtherance of the master‘s business, so that it might be said to be impliedly within his authority?...“: Reis v. Mosebach, supra, p. 414.
Judgment reversed and new trial granted.
Mr. Justice COHEN concurs in the result.
CONCURRING AND DISSENTING OPINION BY MR. JUSTICE EAGEN:
I cannot agree with the conclusion of the Majority that the trial evidence is insufficient to sustain the finding of negligence on the part of Puckett. I do agree, however, that the record is insufficient to establish that Puckett had authority to permit guests to ride in the tractor. The ruling of the lower court on this point was incorrect.
I concur, therefore, in the Order granting a new trial.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
Unlike the majority, I believe that it was reasonable for the trier of fact to conclude that the accident occurred because defendant‘s tractor struck the rear of the tractor-trailer rig parked on the side of the highway. Under the circumstances, it seems to me that the damage to the front of the tractor and the rear
Pinpointing “the essential difficulty” with appellee‘s case as a reliance on “circumstantial supposition” rather than “circumstantial evidence,” the majority cites as support Johnston v. Dick, 401 Pa. 637, 165 A. 2d 634 (1960). This citation falls woefully short of supporting its conclusion. In Johnston, plaintiff was injured when a mixture of kerosene and gasoline exploded as he was filling a highway lantern. Plaintiff‘s theory was that defendant had negligently placed this highly explosive mixture instead of solely kerosene, a much less volatile fluid, in the tank from which plaintiff had drawn his lamplighting fluid. Plaintiff proved only that he was injured by the explosion and that defendant was the individual responsible for filling the tank.
Since in Johnston over 24 hours had elapsed from the time defendant filled the tank to plaintiff‘s injury, it was obvious that, absent evidence tending to show that defendant alone had access to the tank, gasoline could have been added to the tank either during that
Having concluded that the plaintiff‘s theory rests on an inference which could reasonably be drawn, I
Finally, even on the majority‘s own theory — that appellee failed to prove negligence below — its disposition in my view is improper. Rather than remand for a new trial as the majority does, on its theory of the absence of negligence the court below should have been directed to enter a verdict for appellant. Accordingly, I dissent.
Mr. Justice MUSMANNO joins in this dissenting opinion.