Burchard v. Seber

• Decision Date: 16 March 1965
• Citation: 417 Pa. 431,207 A.2d 896
• Parties: June A. BURCHARD, Administratrix of the Estate of Richard Alton Burchard, deceased, v. Harold W. SEBER, Appellant, Duane Troyer and Michael Bailey. Donald BEUCHAT v. Harold W. SEBER, Appellant, Duane Troyer and Michael Bailey. Charles J. ROAE v. Duane TROYER and Michael Bailey, Original Defendants, and Harold W. Seber, Additional Defendant. Appeal of Harold W. SEBER.
• Court: Pennsylvania Supreme Court

207 A.2d 896

417 Pa. 431

June A. BURCHARD, Administratrix of the Estate of Richard

Alton Burchard, deceased, v. Harold W. SEBER, Appellant, Duane Troyer and Michael Bailey.

Donald BEUCHAT v. Harold W. SEBER, Appellant, Duane Troyer and Michael Bailey.

Charles J. ROAE v. Duane TROYER and Michael Bailey, Original Defendants, and Harold W. Seber, Additional Defendant. Appeal of Harold W. SEBER.

Supreme Court of Pennsylvania.

March 16, 1965.

Stuart A. Culbertson, Paul E. Allen, Meadville, for appellant.

F Joseph Thomas, Meadville, for June A. Burchard.

Humes & Kiebort, F. C. Kiebort, Jr., Fred C. Kiebort, Meadville for Troyer & Bailey.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN, and ROBERTS, JJ.

O'BRIEN, Justice.

Richard A. Burchard, Donald Beuchat and Charles J. Roae, on October 30, 1959, were passengers in an automobile owned and being operated by Harold W. Seber. While Seber was driving East on Route 27, between 7:30 and 8:00 A.M., he came into collision with a truck owned by Duane Troyer and operated by Michael Bailey. The truck had suffered engine trouble and was parked partially on the highway in Seber's lane of travel.

As a result of the collision, Burchard was killed and Beuchat and Roae were injured. Burchard's administratrix and Beuchat brought actions of trespass against Seber, Troyer and Bailey, and Roae brought an action of trespass against Troyer and Bailey, who joined Seber as an additional defendant. The cases were consolidated for trial and resulted in jury verdicts for Burchard's administratrix, under the Wrongful Death and Survival Acts, and for Beuchat and Roae, against Troyer and Bailey only, Seber being exonerated of liability by the jury.

Troyer and Bailey moved for judgments n. o. v. and for new trials, and the plaintiffs moved for new trials as to Seber. Subsequently, Troyer's insurance carrier paid the verdicts, up to the limit of its coverage, leaving a portion of the verdicts unpaid. Troyer and Bailey were then in the position of pursuing their new trial motions in order to try to salvage contribution from Seber, and the plaintiffs were in the position of pursuing their new trial motions in order to collect that portion of their verdicts not accounted for by the payment made by Troyer's carrier. The court below held that the verdict exonerating Seber was contrary to the evidence and ordered new trials limited to the issue of the negligence of Seber; these appeals followed.

There is no significant dispute as to the facts of the case, they being well summarized in the opinion of the Court below, as follows: '* * * the defendant Michael Bailey was operating a tractor trailer loaded with lumber in an easterly direction on Route 27 which is the main highway between Meadville and Titusville in Crawford County. The highway is concrete covered with asphalt, but only sixteen feet wide according to the State Policeman who investigated the accident.

'While Mr. Bailey was so proceeding he came around a sharp curve to the right and then proceeded up a long, fairly steep grade known as the Chapmanville Hill. According to the state policeman, there is a straight stretch up the grade 1000 feet in length before the road again curves to the left. As Mr. Bailey proceeded up the hill, the motor of his tractor began sputtering and finally stopped. He tried to get it started again but it wouldn't start, so he left the outfit drift backward and off on the berm as far as he could get and stopped again. Witnesses differed as to how far up the hill this equipment was when it stopped; the state policeman estimated the distance at 850 feet while several other witnesses including the defendant Seber said it was 500 to 600 feet, but no one testified that it was less than 500 feet. Witnesses also differed as to how much of the tractor trailer extended on to the hard surfaced portion of the road. The state policeman said two feet and five inches while several other witnesses testified that it took up at least half of the east bound lane which would be approximately four feet. In any event, the tractor trailer was disabled and parked partly on the hard surface portion of the highway.

'Unfortunately for motorists proceeding easterly toward Titusville that morning, the rising sun struck them squarely in the eyes as they rounded the curve and it was difficult to see going up the hill. At least a half dozen such motorists testified that they came up the hill and nearly struck the truck because of being blinded by the sun but fortunately saw it in time to avoid an accident. Not so, however, with Mr. Seber. He came along with Mr. Burchard riding in the front seat and Mr. Beuchat and Mr. Roae in the rear seat and ran smack into the left rear corner of the trailer, and as a result, Mr. Burchard was killed and Mr. Beuchat and Mr. Roae received extremely serious injuries. The impact was so great that it not only demolished Mr. Seber's car, but also apparently moved the trailer sideways although it was loaded with 26,800 pounds of lumber and weighed 10,500 pounds itself. The impact also tore out and broke the back axle of the trailer.'

From this fact situation, we must determine whether the court below properly granted a new trial limited to the issue of Seber's negligence. In so determining, we are bound by the oft-stated rule that the grant or refusal of a new trial will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the case. Cinciripini v. Harmony Short Line, 416 Pa. 231, 205 A.2d 860 (1965); Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965), and cases cited therein.

The court below found that the negligence of Seber was clearly established by the evidence and that justice dictated a new trial on that issue. This holding is virtually compelled by the testimony of Seber himself. On direct examination by his counsel, he testified as follows: 'Q. Now, as you rounded this curve, what if anything, happened, did you notice or were you aware of? A. As soon as I rounded the bend, why the sun hit me in the eyes. Q. The sun hit you in the eyes. And what kind of a morning was it that morning? A. It was a nice morning. Q. A nice morning. A. For fall. Q. All right, now what did you do when you rounded the curve, at the bottom of the curve the right curve and noticed the sun hitting you in the eyes as you...