Kissell v. Motor Age Transit Lines, Inc.

Decision Date30 June 1947
Docket Number3050
Citation357 Pa. 204,53 A.2d 593
PartiesKissell et al., Trustees, et al. v. Motor Age Transit Lines, Inc., et al., Appellants
CourtPennsylvania Supreme Court

Argued May 26, 1947

Appeals, Nos. 76 to 89 and 94 to 97, incl., March T., 1947 from judgment of C.P., Erie Co., Sept. T., 1944, No. 573, in case of Matilda Kissell et al., Trustees of Priscilla Rebekah Lodge No. 266 et al., Trustees of Lake Side Lodge I.O.O.F. No. 1111 and Ola Hauck, Execx., Estate of Olin G. Hauck deceased, and Ferdinand O. Niebauer v. Motor Age Transit Lines, Inc. et al. Judgment affirmed.

Trespass for property damage. Before EVANS, P.J.

Verdict for plaintiffs in amounts stipulated and judgment entered thereon. Defendants respectively appealed.

Judgment affirmed.

Frank B. Quinn , with him English, Quinn, Leemhuis & Plate , for Motor Age Transit Lines, Inc. and Donald H. Thomas.

William F. Illig , with him Gifford, Graham, MacDonald & Illig , for Direct Transportation Company.

T.P. Dunn , for Lyons Transportation Co., Inc.

William W. Knox , with him Robert J. Firman , for Ola Hauck and Ferdinand O. Niebauer.

John B. Brooks and Brooks, Curtze & Silin , for Priscilla Rebekah Lodge and Lake Side Lodge.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.

OPINION

MR. JUSTICE PATTERSON

This is an action in trespass by Trustees of Priscilla Rebekah Lodge No. 266, Trustees of Lake Side Lodge I.O.O.F. No. 1111, Ola Hauck, executrix, substituted for Olin G. Hauck, and Ferdinand O. Niebauer, against Motor Age Transit Lines, Inc., appellant in appeals Nos. 80, 82, 84, 86 and 87, Lyons Transportation Company, Inc., appellant in appeals Nos. 76, 77, 78 and 79, Direct Transportation Company, appellant in appeals Nos. 94, 95, 96 and 97, and Donald H. Thomas, appellant in appeals Nos. 81, 83, 85, 88 and 89, to recover property damage resulting from a fire occasioned by a collision of two tractor-trailers. A jury returned a verdict of $26,665.46 in favor of appellees and against all appellants. Said verdict represented the stipulated damages. These appeals are from the judgment of the court below dismissing appellants' respective motions for a new trial and for judgment non obstante veredicto .

Considering the evidence in a light most favorable to appellees, and giving them the benefit of all reasonable inferences and deductions to be made therefrom (Ashworth v. Hannum , 347 Pa. 393, 32 A.2d 407), it is nevertheless, difficult to state precisely how the collision occurred. Basically, however, on May 24, 1944, about 2:30 A.M., a tractor, owned by Direct Transportation Company and operated by Robert S. Reed, was proceeding in a westerly direction on United States Route No. 20 toward an intersection with Pennsylvania Route No. 98, in Fairview, Erie County. Said tractor was drawing a trailer owned by Lyons Transportation Company, Inc. This trailer was loaded with castings and the aggregate weight was between 30,000 and 40,000 pounds. At about the same time a tractor-trailer owned by Motor Age Transit Lines, Inc., was being driven by its employee, Donald H. Thomas, northwardly on Route No. 98. The trailer contained inflammable material and the aggregate weight was between 30,000 and 40,000 pounds. The two vehicles collided at or near the aforesaid intersection, and successive explosions followed immediately thereafter. As a result of the explosions, the vehicles burst into flames and the fire spread to and destroyed a building situate on the northwest corner of said intersection, together with all personal property contained in said building. Robert S. Reed, operator of the Direct-Lyons tractor-trailer, was killed.

Thomas, called by appellees as their witness, testified that at about 2:30 A.M. on May 24, 1944, he approached the intersection of Route No. 98 and Route No. 20; that he came to a complete stop; that he then traversed three-quarters of the intersection when he realized he should have turned right on Route No. 20; that he proceeded ahead so that his tractor was about 55 feet north of the north curb line of Route No. 20; that he stopped, looked to the east, the direction from which Direct-Lyons was coming, saw no approaching traffic and began to back his truck when the collision occurred. Immediately after the collision, the rear portion of the Motor Age trailer was 15 to 20 feet north of Route No. 20, the left front and rear wheels thereof being over the west curb line of Route No. 98. The tractor was facing diagonally across said highway with the front portion thereof near the center. The front of Direct-Lyons' trailer was close to the rear portion of the Motor Age trailer. The Lyons trailer was north of the intersection, facing in a northerly direction and diagonally across Route No. 98.

There is ample evidence to sustain verdicts against all appellants. From the testimony of Thomas, a jury could find that both he and his employer, Motor Age, were negligent in that Thomas failed to use reasonable care in backing onto a through highway (Gaskill v. Melella , 144 Pa.Super. 78, 18 A.2d 455); in failing to yield the right-of-way to Direct (Cf. Mellott v. Tuckey , 350 Pa. 74, 38 A.2d 40; Porreca v. North Cleaners and Dyers, Inc ., 146 Pa.Super. 504, 23 A.2d 72); or in failing to keep an adequate lookout for approaching traffic on a through highway. It could also have found that Direct-Lyons were negligent in that Reed failed to observe Motor Age's truck, and negligently crashed into the same. Determination of the issues presented is, therefore, restricted to alleged prejudicial error by the trial judge with regard to the admission or exclusion of certain evidence and in the charge to the jury.

Asserting that Direct was an independent contractor, Lyons contends that the trial judge erred in charging the jury that if it found that Reed, the driver of Direct's tractor, was negligent and his negligence was a contributing cause of the accident, Lyons was liable as a matter of law. Direct contends that the trial judge erred in refusing to strike out testimony regarding skid marks and gouges in the highway, asserting that they were not properly identified. Motor Age and Thomas contend that the trial judge erred in admitting testimony of Ola Hauck and in its charge with regard thereto.

"If specific conduct, in one view, may be construed to be lawful, and in another, to be unlawful, the lawful construction shall be adopted: Rau v. Wilkes-Barre & E.R.R. Co., 311 Pa. 510, 513, 167 A. 230; Morgan v. Heinel Motor, Inc., 329 Pa. 360, 364, 197 A. 920": Kimble v. Wilson , 352 Pa. 275, 282, 42 A.2d 526. The shipment by Lyons was an interstate shipment by a public carrier for which Lyons had an Interstate Commerce Commission permit. Direct had no such franchise. Without this permit, the transportation could not legally have been furnished. Lyons could not transfer its responsibility and liability to one who did not have such certificate. To permit this to be done would render ineffective the requirements of the Federal Motor Carrier Act and regulations based thereon. The relationship of independent contractor whereby Direct was to carry the shipment in question and assume responsibility and liability could not validly be created: Kimble v. Wilson , supra, 281-282; Pennsylvania R.R. Co. v. Cameron , 280 Pa. 458, 466, 124 A. 638. The charge of the trial judge, that if Reed was negligent and that negligence was a contributing cause, then, as a matter of law, Lyons was also negligent, was proper.

Direct's contention that the court below erred in refusing its motion for judgment non obstante veredicto for the reason that Lyons alone had the sole power of control over Reed cannot be sustained. "Where... it is not entirely clear who was the controlling master of the borrowed employe, and different inferences in that regard can fairly be drawn from the evidence, it is for the jury, not the court, to determine the question of agency": Dunmire v. Fitzgerald , 349 Pa. 511, 516, 37 A.2d 596. "... under some circumstances both the lender and the borrower may have control over the servant so as to render each of them liable for his conduct, for he may have been transferred to carry on work which is of mutual interest to them and to effect their common purpose, so that his service to the one does not involve abandonment...

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