Dubrock v. Interstate Motor Freight System
Decision Date | 16 June 1944 |
Docket Number | No. 8568.,8568. |
Parties | DUBROCK v. INTERSTATE MOTOR FREIGHT SYSTEM. |
Court | U.S. Court of Appeals — Third Circuit |
Harold E. McCamey, of Pittsburgh, Pa. (Dickie, Robinson & McCamey, of Pittsburgh, Pa., on the brief), for appellant.
Greer McIlvain, of Pittsburgh, Pa., Wade Heilman, of Kittanning, Pa., and Griggs & Moreland, of Pittsburgh, Pa., on the brief, for appellee.
Before DOBIE and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
This suit arises from an automobile accident in which plaintiff's husband, Levi Frederick Dubrock, was killed. The trial resulted in a verdict and judgment in the sum of $8,000 for the plaintiff. Defendant moved for judgment n.o.v. and also for a new trial averring error in the Court's charge to the jury and complaining of an excessive award of damages to plaintiff. The case is here on appeal from an order of the trial judge denying defendant's motions.
The facts are as follows: The accident in controversy occurred on September 14, 1941, a clear, dry day, at about 2 P.M. near Kittanning, Pa., on Route 422. At the scene of the collision this Route is a straight three lane concrete highway, with a slight grade from west to east, and is intersected on its north side by what is known as the Red Mill Road. The uncontradicted testimony of two eyewitnesses was to the effect that the sedan which Dubrock was operating was travelling at a speed of about twenty miles per hour in an easterly direction on Route 422 in the center lane, and was "angling" to the left with its left wheels on or a little over the line marking off the center lane from the northernmost or left lane of the highway. The evident purpose of Dubrock was to make a left turn into Red Mill Road. At this time, according to the testimony, the defendant's tractor-trailer was about 100 feet away, travelling in a westerly direction on Route 422 at approximately 40 miles per hour. Apparently realizing that the Dubrock car was about to make a left turn, the driver of the truck moved into the center lane evidently to go around the Dubrock car on the outer lane. One of the witnesses, Paul Dosch, shouted a warning to Dubrock, with whom he was acquainted, and Dubrock tried to turn back to the center lane to avoid colliding with the truck. The point of impact was in the center lane, the Dubrock car being hit at the front towards the left. There were skid marks from the truck's tires for 68 feet in the center lane, and the deceased's car was pushed 198 feet from the end of the skidmarks. At the trial the defendant offered no evidence as to the cause of the accident.
Considering first defendant's motion for judgment n.o.v. we are of the opinion the trial judge was justified in denying it. Considering the evidence in a light most favorable to the plaintiff, we cannot say as a matter of law that the deceased was contributorily negligent, nor that defendant's conduct was not the proximate cause of the accident. It is a jury question whether it is negligence to attempt a left turn at twenty miles per hour in the face of oncoming traffic over 100 feet distant travelling at 40 miles per hour. Even granting the deceased made a mistake in turning to the right to avoid the collision, such mistake cannot bar recovery unless the emergency was created by the deceased's negligence. Miller v. Southern Asphalt Co., 1934, 314 Pa. 289, 171 A. 472; Brennen v. Pittsburgh Rys. Co., 1936, 323 Pa. 81, 86, 186 A. 743; Restatement, Torts, sec. 296. As we said, whether deceased's conduct did give rise to the emergent situation is a question for the jury. Moreover, it is true, as the trial judge pointed out, that there is a presumption the deceased exercised due care for his own protection. Johnson v. Hetrick, 1930, 300 Pa. 225, 229, 150 A. 477; Kriesak v. Crowe, D.C., 44 F.Supp. 636, affirmed 3 Cir., 1942, 131 F.2d 1023.
With regard to his motion for a new trial, defendant asserts that the trial judge erred in refusing to charge as requested on the matter of proximate cause; that the trial judge erred in his charge as to the right of way at intersections; and that the damages awarded were excessive.
On the subject of proximate cause, the defendant requested the trial judge to charge that:
And again (R 101) (14a):
(Emphasis supplied).
And still again (R 101) (13a-14a):
"If Dubrock having once committed himself to the turn, made a turn to the right again, you will have to say whether that would be an act of contributory negligence on his part which would prevent his widow and his children to recover any damages they may suffer by reason of his death." (emphasis supplied.)
From the cases cited by defendant, it is evident he had in mind a charge to the effect that even if the jury found defendant negligent no recovery could be had unless such negligence was also the proximate cause of the accident. There is no doubt under Pennsylvania law that defendant would be entitled to such a charge. However, the trial judge satisfactorily and adequately covered this subject in the instruction: —(R 99) (12a).
"Now, in order to recover in this case the burden rests upon the plaintiff to show by the fair weight of evidence that the collision that resulted in the death of her husband was due to negligence on the part of the driver of this defendant's truck, and that must be shown by the fair weight of evidence."
And again (R 101) (14a):
"If the truck driver was negligent and the collision resulted from the negligence of the truck driver, and there was no contributory negligence on the part of Dubrock in the operation of his car, then the plaintiff ought to recover in this case * * *." (Emphasis supplied.)
We are of the opinion the learned trial judge properly denied the request as stated, and his charge adequately protected the defendant's interests.
The defendant urges that the trial judge erred in charging the jury with...
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