Ferne v. Chadderton
| Decision Date | 14 November 1949 |
| Docket Number | 1036 |
| Citation | 363 Pa. 191,69 A.2d 104 |
| Parties | FERNE v. CHADDERTON et al. |
| Court | Pennsylvania Supreme Court |
Argued September 27, 1949
Appeals, Nos. 153 and 154, March T., 1949, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1946 No. 240, in case of Esther Levina Ferne, Admrx., Estate of Harry A. Ferne, alias dictus, Harry Adam Ferne, Deceased, v Edward W. Chadderton, trading as Chadderton Truck Lines et al. Judgment reversed and new trial awarded.
Same case below: 65 D. & C. 34.
Trespass for wrongful death. Before McWHERTER, J.
Verdicts in favor of administratrix in the sum of $2500, in favor of widow in the sum of $1500, and in favor of minor daughter in the sum of $5000 and against defendant owner; verdicts in favor of administratrix in the sum of $50, in favor of widow, nothing, and in favor of minor daughter in the sum of $50 and against defendant driver, and judgments entered on the verdicts. Defendants appealed.
Decree overruling defendants' motions for judgment n.o.v. affirmed; decree dismissing defendants' motion for new trial reversed; the judgment is reversed and new trial awarded.
Carroll Caruthers , with him Ben H. Marks , for appellants.
D. J. Snyder, Jr ., with him William T. Dom, 3rd, Fred B. Trescher and Kunkle & Trescher , for appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Because of the incongruous and wholly irregular verdicts awarded by the jury in this case a new trial must be granted.
A tractor, to which was attached a trailer-truck heavily loaded with pipe, was traveling in a southerly direction uphill on a two-lane black-top road near Freeport in Westmoreland County at about six to seven o'clock of a January night. The highway, due to a covering of snow and ice, was in quite a slippery condition. When part way up the hill the operator, Herbert Groce, started to shift gears, whereupon the wheels began to spin and the truck skidded and "jackknifed" across the highway in such a position that the rear wheels of the trailer rested in a hollow portion of the berm on the northbound lane and the tractor and body of the truck stretched diagonally across that lane and part of the southbound lane. Groce attempted to extricate the truck by shoveling cinders under the wheels, a task in which he was engaged for a period of at least 15 minutes but without success. According to Groce's testimony the headlights of the tractor were lit but they were on low beam, and a bar light on the top of the cab consisting of three amber lights was also lit. Plaintiff's decedent, Harry A. Ferne, driving a gasoline tank truck in a northerly direction down this same hill at a moderate rate of speed, upon rounding a sharp bend in the roadway suddenly saw defendant's truck about 100 feet ahead of him; being thus confronted, as he came down the rather steep grade, with an emergency situation, he quickly applied his brakes with the result that his vehicle skidded into a guard rail along the side of the highway, and there came to rest at a distance of from 75 to 100 feet in front of defendant's truck. He himself was thrown forward against the steering wheel and sustained injuries which plaintiff, administratrix of his estate, claims were the cause of his death some nine months after the accident. She brought the present action under the Survival Statute on behalf of his estate and under the Death Statutes on behalf of herself as widow and his nine year old daughter, and obtained verdicts against Groce and Groce's employer, Edward W. Chadderton. Defendants now appeal from the court's refusal to grant their motions for judgment n.o.v. and for a new trial.
The suit is based upon the failure of Groce to comply with the Vehicle Code of May 1, 1929, P.L. 905, section 824, (added to the Code by the Act of May 25, 1933, P.L. 1064, and as subsequently amended) which provides that whenever any vehicle of a certain type [1] and its lighting equipment are disabled during the period when lighted lamps must be displayed on vehicles, and such vehicle cannot immediately be removed from the main traveled portion of the highway, or if the lighting equipment is not disabled but, due to the position of the vehicle upon the highway or by reason of contours or curves in the highway, it may constitute a menace to other vehicular traffic, the operator must light and place flares upon the highway, one at a distance of approximately 100 feet in advance of the vehicle, one at a distance of approximately 100 feet to the rear of the vehicle, and on upon the highway side of the vehicle, each flare to be visible from a distance of at least 500 feet. There is no question in the present case but that defendant's vehicle was "disabled", because it was not able to move of its own power, and its lighting equipment may also be said to have been disabled because, by reason of the diagonal position in which the tractor lay across the roadway, its lights would be ineffective as to approaching vehicles; in any event the flares were required, as the jury evidently found, because of the position of the vehicle in relation to the curve or bend in the highway. It is also clear that the failure to place the flares was the proximate cause of the accident, or at least a jury might so find ( Helmick v. South Union Township , 323 Pa. 433, 439, 185 A. 609, 611) since, according to the testimony of one of plaintiff's witnesses, the headlights of a vehicle coming around the bend in the road would not bring the disabled truck into view at a distance of more than approximately 100 feet, so that the operator of a vehicle approaching on the down grade of the hill might well feel the necessity of stopping abruptly, with the resulting likelihood of his skidding on the icy road. Nor is there any evidence in the case to convict decedent of contributory negligence, since his truck was being operated at a moderate rate of speed, and, in attempting to make a quick stop, he was acting in what was apparently an emergency situation. Defendants' motions for judgment n.o.v. were therefore properly overruled.
Unfortunately the learned trial judge charged the jury that if they brought in a verdict in favor of the plaintiff they should "decide how much the plaintiff is entitled to receive and, also, decide how much Chadderton, as owner of the truck, must pay, and, also, how much, if any, the driver, Groce, should be required to pay". This naturally invited the result that followed, namely, the rendition by the jury of verdicts in different amounts against Groce...
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