Carpini v. Pittsburgh and Weirton Bus Company

• Decision Date: 10 November 1954
• Docket Number: No. 11297-11302.,11297-11302.
• Citation: 216 F.2d 404
• Parties: Rose CARPINI and Dominic Carpini, Her Husband, v. PITTSBURGH and WEIRTON BUS COMPANY, a Corporation, Appellant, and General Motors Company, a Corporation (two cases). Mary ROCCHIO, a Minor, by Her Parents and Natural Guardians, John Rocchio and Pauline Rocchio, and John Rocchio and Pauline Rocchio in Their Own Right, v. PITTSBURGH and WEIRTON BUS COMPANY, a Corporation, and General Motors Company, a Corporation, Appellant (two cases). Ann ROCCHIO, a Minor, by her Parents and Natural Guardians, John Rocchio and Pauline Rocchio, and John Rocchio and Pauline Rocchio in Their Own Right, PITTSBURGH and WEIRTON BUS COMPANY, a Corporation, Appellant, and General Motors Company, a Corporation (two cases).
• Court: U.S. Court of Appeals — Third Circuit

216 F.2d 404 (1954)

Rose CARPINI and Dominic Carpini, Her Husband, v. PITTSBURGH and WEIRTON BUS COMPANY, a Corporation, Appellant, and General Motors Company, a Corporation (two cases).

Mary ROCCHIO, a Minor, by Her Parents and Natural Guardians, John Rocchio and Pauline Rocchio, and John Rocchio and Pauline Rocchio in Their Own Right, v. PITTSBURGH and WEIRTON BUS COMPANY, a Corporation, and General Motors Company, a Corporation, Appellant (two cases).

Ann ROCCHIO, a Minor, by her Parents and Natural Guardians, John Rocchio and Pauline Rocchio, and John Rocchio and Pauline Rocchio in Their Own Right,

PITTSBURGH and WEIRTON BUS COMPANY, a Corporation, Appellant, and General Motors Company, a Corporation (two cases).

No. 11297-11302.

United States Court of Appeals, Third Circuit.

Argued October 14, 1954.

Decided November 10, 1954.

Rehearing Denied November 30, 1954.

(David B. Fawcett, Jr., Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, Pa., on the brief), Sanford M. Chilcote, Pittsburgh, Pa., for Pittsburgh & Weirton Bus Co. George Y. Meyer, Pittsburgh, Pa., for General Motors Corp.

James P. McArdle, Pittsburgh, Pa., for plaintiffs.

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

These are appeals from judgments for the plaintiffs in suits for personal injuries. The tragic occurrence out of which these actions grew can be very briefly described. On the morning of April 29, 1951, a bus operated by an employee of the Pittsburgh and Weirton Bus Company (Weirton) was on its way down a long hill into the town of Weirton, West Virginia. This hill is part of U. S. Route 22 and is sometimes called "Weir Hill." In places the grade is quite steep reaching almost nine per cent. The bus was full of passengers; it was just before church time of a Sunday morning and most of the passengers were on their way to attend church in the main part of town at the foot of the hill. About the time the bus passed Tenth Street, where it swung around another bus operated by the same company, or perhaps a little before, the braking power failed and the driver lost control of the vehicle. Nearing the company's garage at the foot of the hill the driver endeavored to make a right turn so as to start the bus up a shorter hill. His attempt failed; he crashed into a retaining wall and the bus was wrecked. Eleven persons were killed and forty-nine injured.

In this lawsuit the emphasis by the defendants is not in a denial of the right of recovery for the plaintiffs. Instead each defendant has sought to show that the other was responsible. The plaintiffs have been left in the position of being at least semi-spectators to a conflict between the two defendants in the action. The jury brought in a verdict against both of them. The question on this appeal is whether the verdict can stand.

The legal points in the case have been pretty much worked over in recent opinions of this Court and the Supreme Court of Pennsylvania. Here there is federal jurisdiction by diversity only. We have an action brought in Pennsylvania for an alleged tort which took place in West Virginia. We make the same rule of reference to foreign law as would Pennsylvania courts and the Pennsylvania conflict of laws rule is to look to the place where the accident happened to determine the legal consequences of it. We worked through all this in Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908, and 3 Cir., 1950, 183 F.2d 467. In between our two opinions came that of the Supreme Court of Pennsylvania in Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517.

Referring, then, to the law of West Virginia, it is clear that we find there the adoption of the general rule concerning the high duty owed by a carrier of passengers to its customers. Venable v. Gulf Taxi Line, 1928, 105 W.Va. 156, 141 S.E. 622. It is undisputed also, by the defendant, General Motors, that the manufacturer of a chattel has a duty of care to the ultimate consumer or user thereof. This was declared to be the law of West Virginia by the Fourth Circuit in General Motors Corp. v. Johnson, 4 Cir., 1943, 137 F.2d 320. To be cited also are Webb v. Brown & Williamson Tobacco Co., 1939, 121 W. Va. 115, 2 S.E.2d 898, and, as to Virginia law, Pierce v. Ford Motor Co., 4 Cir., 1951, 190 F.2d 910. Indeed, this principle has now become so well established that it would be sheer affectation to pile up citation of decisions upon it. See in general Restatement, Torts, § 388 et seq.

The rule of law governing the case being practically undisputed the point for decision becomes whether there is evidence which will uphold the verdict for the plaintiffs against both defendants. If so, the judgments of course must stand. We think there is such evidence.

Consider first the case against Weirton. The district court was very sure in his own mind of the liability here and did not discuss Weirton's liability in any detail. We agree with him that there is sufficient testimony to support the jury's verdict. In the first place this bus was traveling over a road which had a steep grade. It was also covered with rocks and debris on the morning in question because there had been a rather severe storm the night before and the highway people had not by this time in the morning cleaned off the road with their scrapers. The situation was, obviously, one which called for very careful driving in order to exercise reasonable care. The brakes on this bus had caused some difficulty on the driver's earlier trip. There was testimony that he told a passenger that his brakes were not holding and that he stopped in the company's garage near the foot of the hill to have them adjusted. This adjustment occupied something less than five minutes. Whether that was a sufficient precaution is a matter for consideration in determining the general...