Fetsko v. Greyhound Corporation, 71-1415

• Decision Date: 23 May 1972
• Docket Number: No. 71-1415,71-1416.,71-1415
• Citation: 461 F.2d 754
• Parties: Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased, Appellant, v. The GREYHOUND CORPORATION and Greyhound Lines, Inc. Joseph G. GRESS, Administrator of the Estate of Mary Ellen Gress, Deceased, Appellant, v. The GREYHOUND CORPORATION and Greyhound Lines, Inc. v. Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased, (Third Party Defendant).
• Court: U.S. Court of Appeals — Third Circuit

461 F.2d 754 (1972)

Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased, Appellant, v. The GREYHOUND CORPORATION and Greyhound Lines, Inc.

Joseph G. GRESS, Administrator of the Estate of Mary Ellen Gress, Deceased, Appellant, v. The GREYHOUND CORPORATION and Greyhound Lines, Inc. v. Joseph FETSKO, Administrator of the Estate of Patricia Ann Fetsko, Deceased, (Third Party Defendant).

Nos. 71-1415, 71-1416.

United States Court of Appeals, Third Circuit.

Submitted March 21, 1972.

Decided May 23, 1972.

Donald E. Ziegler, Catalano, Ziegler & Malone, Pittsburgh, Pa., for appellant.

Herman C. Kimpel, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellee.

Before ADAMS, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

In this diversity wrongful death case appellant Fetsko, administrator of the Estate of Patricia Ann Fetsko, and appellant Gress, administrator of the Estate of Mary Ellen Gress, appeal from an order granting a directed verdict at the end of the plaintiffs' case. The case arises out of an automobile accident which occurred on Route 51, Elizabeth Township, Allegheny County, Pennsylvania, on March 3, 1968. Decedent Fetsko was the driver of and decedent Gress was a passenger in an automobile which, while proceeding north on Route 51, skidded across the highway divider and was struck head on by a south bound bus operated by the defendant Greyhound Lines, Inc. Greyhound's motion for a directed verdict was predicated on the assertion that the plaintiffs had failed to establish a prima facie case of negligence on the part of its driver. There was no contention that the passenger, Gress, was contributorily negligent. Even as to the decedent driver, Fetsko, the district court declined to hold that the evidence conclusively established contributory negligence (132a), although that ground was advanced by Greyhound in support of its Rule 50(a) motion. The district court's ruling went solely to the failure of the proofs to establish that Greyhound's employee driver was negligent. Thus this appeal presents the issue whether the evidence, and reasonable inferences which could be drawn therefrom, viewed in the light most favorable to the party against whom the verdict was to be directed, would support a jury verdict that the Greyhound driver was negligent. Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 57 (1971); Denneny v. Siegel, 407 F.2d 433 (3d Cir. 1969). Appellants contend that the evidence, judged in this light, permitted a finding that the Greyhound driver was negligent because of excessive speed, inattentiveness, and failure to take evasive action.

The witness Wise, a coal truck operator, established that about noon on the day of the accident decedents' car was proceeding north on Route 51, a four lane highway with a center medial strip and a berm adjacent to the road on each side. He was in the right northbound lane, the first in line of three coal trucks. Decedents' car proceeded to pass the three trucks in the passing lane going about 50 miles per hour. He observed that another car was stopped in the passing lane to make a left hand turn into a place of business on the other side of the highway. Decedent applied the brakes and her car swerved over the center medial strip and collided, in the southbound passing lane, with the Greyhound bus, which at impact swerved to its left across both northbound lanes of traffic and down an embankment. He stopped his truck and came to the assistance of the bus driver, who told him that he did not see the auto in time to avoid the collision. (69a). He observed that in the lane where the brakes of decedent's car had been applied there were "ashes and so on along the edge of the medial strip." (70a). He expressed his opinion that the gravel on the roadway was the reason why decedent's car crossed over into the oncoming lane. (86a). The speed limit was 55 miles per hour for cars and 45 miles per hour for trucks. (65a).

The Greyhound driver, Shoaf, testified that he was proceeding south in the passing lane; that he did not observe a car stopped in the northbound passing lane to make a left hand turn (92a); that fifty or sixty feet before the intersection at which it was possible to make a left hand turn through the medial strip he had glanced to his left to look at the driver of a northbound coal truck to see if he recognized him. (97a, 103a). He applied his brakes before the accident. (98a). He first observed the decedent's car 70 or 80 feet from the point of impact. (102a). He did not see the decedent's car before it came over into his lane. (104a). The only evasive action he took was to put on the brakes. (102a).

The witness Taulton testified that he observed the Greyhound bus proceeding southbound in the passing lane. (115a et seq.). There was no traffic in the slow lane as the bus proceeded south in the passing lane toward the point of impact. (116a). He observed the bus for 700 feet prior to the impact. (117a). He estimated the speed of the bus at about 55 or 60 miles an hour when it passed him 400 feet prior to the impact and it did not decrease speed at any time before the impact. (119a). The speed limit on Route 51 was 50 miles an hour. (120a). This witness, although of tender years, was held to be testimonially qualified on the matters about which he testified. His testimony as to the speed of the bus, and as to the absence of traffic in the southbound slow lane, conflicted with that of Greyhound's driver.

Greyhound's answer to interrogatories admitted in evidence established that the bus left skid marks for a distance of 71 feet and that there were no obstructions to prevent the bus driver from seeing the decedent's car as he approached the point of impact. (61a).

Appellants contend that from the foregoing evidence the jury could have concluded that the Greyhound bus was proceeding southerly in the passing lane at a speed in excess of the legal limit; that the driver, instead of continuing his forward observation glanced to the left to observe a coal truck driver; that when the decedent's car skidded into the southbound lane there was unobstructed space in the right hand southbound lane in which to take evasive action; that instead the bus never slowed down until the impact, and took no evasive action other than attempting to brake; that the braking attempt failed because of the excessive speed and the driver's tardy observation.

The district court properly concluded that a jury question was presented, as to the contributory negligence of the decedent Fetsko, the driver, by the evidence that gravel in the roadway caused her car to skid into the southbound lane. See, e. g., Sowizral v. Hughes, 333 F.2d 829, 835 (3d Cir.1964). There is no issue of contributory negligence in the case of the decedent Gress, the...