Atkinson v. Roth

• Decision Date: 06 October 1961
• Docket Number: No. 13549-13555.,13549-13555.
• Citation: 297 F.2d 570
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Burr ATKINSON, Jr., Appellant, v. William Scott ROTH and E. F. Mengle & Sons Trucking Company, and Kerry Coal Company. Howard JAMISON, Administrator of the Estate of William W. Weishner, Deceased, Appellant, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants. Howard JAMISON, Administrator of the Estate of William W. Weishner, Deceased, Appellant, v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth v. Burr ATKINSON, Jr., Third Party Defendant. Bernard WOJNAR, a Minor, by Anthony Wojnar, His Natural Guardian, and Anthony Wojnar, His Parent, in His Own Right, Appellants, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants. Thomas E. TAYLOR, Jr., Appellant, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants. Thomas ROBERTS, a Minor, by Victor I. Roberts, His Natural Guardian, and Victor I. Roberts and Maureen A. Roberts, His Parents, in Their Own Right, Appellants, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants. Mary Dolores KORZI, Administratrix of the Estate of Thomas Arthur Lorenc, Deceased, Appellant, v. E. F. MENGLE & SONS TRUCKING COMPANY and Kerry Coal Company v. Burr ATKINSON, Jr., Third Party Defendant.

297 F.2d 570 (1961)

Burr ATKINSON, Jr., Appellant, v. William Scott ROTH and E. F. Mengle & Sons Trucking Company, and Kerry Coal Company.

Howard JAMISON, Administrator of the Estate of William W. Weishner, Deceased, Appellant, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants.

Howard JAMISON, Administrator of the Estate of William W. Weishner, Deceased, Appellant, v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth v. Burr ATKINSON, Jr., Third Party Defendant.

Bernard WOJNAR, a Minor, by Anthony Wojnar, His Natural Guardian, and Anthony Wojnar, His Parent, in His Own Right, Appellants, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants.

Thomas E. TAYLOR, Jr., Appellant, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants.

Thomas ROBERTS, a Minor, by Victor I. Roberts, His Natural Guardian, and Victor I. Roberts and Maureen A. Roberts, His Parents, in Their Own Right, Appellants, v. Burr ATKINSON, Jr. v. E. F. MENGLE & SONS TRUCKING COMPANY, Kerry Coal Company and William Scott Roth, Third Party Defendants.

Mary Dolores KORZI, Administratrix of the Estate of Thomas Arthur Lorenc, Deceased, Appellant, v. E. F. MENGLE & SONS TRUCKING COMPANY and Kerry Coal Company v. Burr ATKINSON, Jr., Third Party Defendant.

Nos. 13549-13555.

United States Court of Appeals Third Circuit.

Argued June 23, 1961.

Decided October 6, 1961.

As Amended on Denial of Rehearing January 16, 1962.

James Craig Kuhn, Jr., Pittsburgh, Pa. (Arnold D. Wilner, Wilner, Wilner & Kuhn, Pittsburgh, Pa., on the brief), for appellants Wojnar and others in Nos. 13552-13555.

Wray G. Zelt, Jr., Washington, Pa. (Michael E. Kusturiss, Canonsberg, Pa., on the brief), for appellant Jamison in Nos. 13550 and 13551.

John M. Feeney, Jr., Pittsburgh, Pa. (Gene K. Lynch, McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief), for appellant Atkinson in No. 13549.

George Y. Meyer, Pittsburgh, Pa. (Donald W. Bebenek, Meyer, Darragh, Buckler & Bebenek, Pittsburgh, Pa., on the brief), for appellee Atkinson, in Nos. 13550-13555.

Joseph W. Weis, Jr., Pittsburgh, Pa. (Weis & Weis, Pittsburgh, Pa., on the brief), for all appellees except Burr Atkinson, Jr.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

These appeals are from judgments entered against the plaintiffs following the return by a jury of answers to special interrogatories,¹ with no general verdict.

Seven actions were instituted in the court below stating claims arising out of a collision between an automobile driven by one Atkinson and a tractor-trailer driven by one Roth. Atkinson had five passengers in his vehicle. There is no dispute that he and three of his passengers were injured, and two of his passengers died, in the accident. Separate actions were commenced by or on behalf of three passengers against Atkinson, who joined Roth and his alleged employers as third-party defendants. The administrator of the estate of a fourth passenger commenced two separate actions, one against Atkinson, who joined Roth and his alleged employers as third-party defendants, and the other against Roth and his alleged employers, who joined Atkinson as a third-party defendant. The administratrix of the estate of a fifth passenger commenced an action against Roth's alleged employers, who joined Atkinson as a third-party defendant. Atkinson sued Roth and his alleged employers, one of whom filed a counterclaim for damages to the tractor-trailer. On the motion of Roth and his alleged employers, all the actions were consolidated for trial, over the objection of Atkinson, qua plaintiff. It was agreed, however, that only the issue of liability should be tried.

The evidence with respect to the accident was as follows:

The accident occurred on Route 19, a two-lane highway, in the vicinity of Harlansburg, Pa., about 1:30 o'clock p. m., on January 25, 1958. It had snowed earlier in the day, but no snow had fallen within several hours prior to the accident. Snow was piled on the sides and the berms of the road on each side, and snow and slush covered the center portion of the road. The center of the road was difficult to discern, and the snow on the sides of the road made it impossible to determine where the cement portion ended and the berm began.

Atkinson was driving in a northerly direction and Roth was approaching him in a southerly direction. On Atkinson's side, just south of the point of the collision, there was a roadside sign "Pavement Narrows" to warn drivers proceeding north that the pavement ahead was not as wide as the pavement then being travelled.

Atkinson testified that as he approached the straightway of about 1300 feet, he saw Roth's vehicle coming toward him about 400 feet away, partly in his lane of travel. He said he had been travelling at about thirty-five miles per hour and when he saw the Roth vehicle he removed his foot from the accelerator. He moved to his right to make way for Roth and, not being able to see where the cement ended and the berm began, his right wheels, or one of them, sank in the berm and snow and caused his vehicle to slide or skid across the highway to the berm opposite. He testified that he was entirely on the berm of the opposite (Roth's) side of the road and stopped when Roth pulled to his right and struck him. Roth, on the other hand, testified that his vehicle was in the slush in his own lane and when Atkinson's vehicle was about 100 feet away it seemed to slide to its right and then came across the highway in front of him. He said that he pulled his vehicle to his right to avoid contact and immediately applied his brakes, but the two vehicles collided while they were both in motion, and after the impact his vehicle dragged the Atkinson vehicle in the direction that he was travelling. Roth admittedly could not tell where the middle of the roadway was, but nevertheless insisted that he could not have been travelling in the other lane. He asserted that his speed was about thirty-five miles per hour.

There was testimony from two surviving passengers which corroborated Atkinson as to his speed² and the location of Roth's vehicle in the Atkinson lane. There was testimony from other drivers that Atkinson was travelling at about fifty miles per hour, and that Roth was travelling from forty to forty-five miles per hour. Neither vehicle was equipped with chains, although chains were available to Roth. The tractor-trailer was equipped with a switch marked "Slippery roads and dry roads", which, if placed on the "Slippery roads" position, took the brakes off the front wheels to prevent swerving. Roth did not recall the position of the switch at the time of the collision.

In the trial of the case, Atkinson, as plaintiff, contended that the collision was solely the result of Roth's negligence in operating his vehicle over the center line of his lane and forcing him off the road, with the result that he skidded across the road. Moreover, he contended that after the skid, Roth had adequate room to pass, since he had come to rest on the berm off the road to Roth's right. Roth contended that Atkinson skidded across the road as a result of his own negligence, and thus he, Roth, was presented with an emergency. However, Roth further argued that if he was negligent, so also was Atkinson. The remaining plaintiffs, of course, contended that the accident was the result of the negligence of either or both operators.

The district court interpreted the jury's answers to the special interrogatories as finding "neither driver guilty of negligence and both drivers guilty of contributory negligence", and "in accordance with the jury's answers" entered judgments against all claimants.

Each of the plaintiffs filed appropriate motions, contending, variously, that judgments should have been entered in their favor, that the jury's answers to the special interrogatories were "inconsistent and meaningless", that the court erred in its charge, that the charge and the interrogatories were inadequate and confusing, and that the "verdict" was against the weight of the evidence. In denying the motions the district court concluded that it had correctly stated the law in its charge, but in any event no timely objections to the charge, except in one instance, or to the interrogatories, had been made. The district court concluded that it did not err in permitting the jury to find that both operators were presented with a sudden emergency, but in any event this alternative had been rejected as evidenced by the finding that each driver was contributorily negligent. It rejected the contention that the "verdict" was against the weight of the evidence on the ground that this called for the exercise of the court's discretion; and, in its opinion the case was fairly tried and it did not feel free to re-weigh the evidence.

We are of the opinion that the judgments entered below should not be permitted to stand.

In McNello v. John B. Kelly, Inc., 3 Cir., 1960, 283 F.2d 96, 101, we had occasion to point out the fundamental necessity of relating the law to the evidence in the court's instructions to the jury in a negligence case. However precisely correct instructions concerning the law may be, we may not lose sight of the fact that the objective of the charge is to clarify the issues in the light of the evidence "to provide aid and guidance for the jury". See De Angelis v. Burns, 1961, 404 Pa. 230, 171 A.2d 762, 764. If it is to be assumed that jurors have ordinary intelligence, it may not be assumed that they are students of the law. The task of the jury, to apply the rules of law as given by the court below, certainly cannot be satisfactorily accomplished, as we pointed out in McNello, in the abstract. Viewed in...