Hutchinson v. Follmer Trucking Co.
| Decision Date | 22 March 1939 |
| Docket Number | 314 |
| Citation | 5 A.2d 182,333 Pa. 424 |
| Parties | Hutchinson v. Follmer Trucking Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 27, 1939.
Appeal, No. 314, Jan. T., 1938, from judgment of C.P Lancaster Co., Aug. T., 1936, No. 38, in case of Cressa A Hutchinson v. Follmer Trucking Company. Judgment reversed.
Trespass for wrongful death. Before ATLEE, P.J.
The opinion of the Supreme Court states the facts.
Verdict for judgment for plaintiff in sum of $5,437.77. Defendant appealed.
Error assigned, among others, was refusal of judgment n.o.v.
The judgment is reversed and here entered for defendant.
Bernard J. Myers, of Zimmerman, Myers & Kready, for appellant.
G. T Hambright, with him Harold K. Wood, J. Paul MacElree and John E. Malone, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Adelbert Hutchinson, driving a milk truck eastwardly on the Harrisburg Pike at about quarter to four in the morning of March 3, 1936, ran into the rear of the westernmost of a fleet of three trucks which also were headed east and which were owned and operated by defendant. The accident occurred in the village of Salunga, Lancaster County. It was snowing at the time and the visibility was extremely poor. Hutchinson was killed. His widow brought the present suit to recover damages for herself and two minor children, and obtained a verdict and judgment in the court below.
Plaintiff's statement of claim charged that the drivers of defendant's trucks were negligent in parking them on the highway, without adequate signals or warnings, at a point where the road curved and they could not be observed by cars coming in an easterly direction; in failing to warn approaching traffic that the road was not clear; in operating the trucks in a negligent manner under the circumstances; and in failing properly to equip the truck involved in the collision. Had any of these allegations been supported by testimony and shown to have caused the accident, the verdict would be sustainable; unfortunately for plaintiff, the required evidence was not forthcoming and the judgment must therefore be reversed.
The statement of claim was apparently drafted on the assumption that defendant's trucks stopped, one in back of the other, on the 18-foot concrete highway, in order that the drivers might remove the chains, and that while this work was going on the trucks were allowed to remain standing on the paved portion of the road instead of on the 12-foot cinder berm. But at the trial plaintiff was unable to establish either that defendant's trucks had been parked on the paved portion of the highway or that they were standing there when the accident occurred. On the contrary, the uncontradicted testimony was to the effect that at least the two easterly trucks were parked off the concrete, and there was no evidence as to the third one except that immediately after the collision the truck and trailer portions of it were "jackknifed" so as to rest partly on and partly off the paving. Furthermore, plaintiff's principal witness testified that, having been aroused from sleep by the noise made by the removing of the chains, she looked through her window and observed the drivers finishing this work. She continued: She then left to go back to bed, but, hearing a crash, returned to another window and saw that a collision had occurred. No witness testified to the contrary, so that it definitely appears that the third truck, which was the one that was struck, had started and was in motion at the time of the accident. Whatever, therefore, the duty of defendant may have been in connection with the parking of the trucks, it was legally ended when the parking ceased and the onward motion was resumed, and, whatever faults may have existed as to the place or mode of parking, they played no role in the subsequent tragedy.
Plaintiff, being thus obliged to seek other grounds upon which to predicate defendant's liability, seizes upon the theory that the accident may have happened by the driver of the truck moving out into the roadway without first looking for approaching traffic. This, however, is purely conjectural; there was no eyewitness nor any testimony as to how far away Hutchinson was when defendant's truck recommenced its eastward movement. Negligence is never presumed from the mere happening of a collision; in the absence of evidence it cannot be inferred that one party rather than the other was at fault: Klein v. Philadelphia Rural Transit Co., 320 Pa. 548; Niziolek v. Wilkes-Barre Railway Corporation, 322 Pa. 29; Ranck v. Sauder, 327 Pa. 177; Brooks v. Morgan, 331 Pa. 235.
A witness testified that de...
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