Makowsky v. Povlick

• Decision Date: 02 January 1959
• Docket Number: No. 12657.,12657.
• Citation: 262 F.2d 13
• Parties: Joseph P. MAKOWSKY, Administrator of the Estate of Albert Makowsky, Deceased, Appellant. v. Michael POVLICK and Robert F. Stegmeier.
• Court: U.S. Court of Appeals — Third Circuit

262 F.2d 13 (1959)

Joseph P. MAKOWSKY, Administrator of the Estate of Albert Makowsky, Deceased, Appellant. v. Michael POVLICK and Robert F. Stegmeier.

No. 12657.

United States Court of Appeals Third Circuit.

Argued November 20, 1958.

Decided January 2, 1959.

B. Nathaniel Richter, Philadelphia, Pa. (Edward L. Wolf, Richter, Lord & Levy, Philadelphia, Pa., on the brief), for appellant.

E. Walter Helm, 3d, Philadelphia, Pa., for appellees.

Before BIGGS, Chief Judge, and MARIS and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff, Joseph P. Makowsky, administrator of the estate of Albert Makowsky, deceased, appeals from a judgment entered in the District Court for the Eastern District of Pennsylvania dismissing his action against the defendants, Michael Povlick and Robert F. Stegmeier, brought to recover damages for the death of the plaintiff's decedent resulting from a motor vehicle collision. Federal jurisdiction was based upon diversity of citizenship. The operative facts occurred in Pennsylvania and the law of that state governs. After the plaintiff rested his case, which was being tried to a jury, the defendants moved for a compulsory dismissal. The defendants' motion was granted and judgment was entered dismissing the action. This appeal followed.

Before considering the merits of the appeal, we comment upon the procedure employed in the district court. It appears that the defendants' motion for a compulsory dismissal was made and granted under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C. A dismissal under this Rule, other than for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits, Kuzma v. Bessemer & Lake Erie Railroad, 3 Cir., 1958, 259 F.2d 456, and requires the court to make findings as provided in Rule 52(a). However, no findings appear in the record before us. Accordingly, we shall treat defendants' motion as one for a directed verdict and the judgment as one entered upon a directed verdict in accordance with Rule 50(a). Meyonberg v. Pennsylvania R. Co., 3 Cir., 1947, 165 F.2d 50, 52.

The plaintiff contends that the district court erred in not submitting the issue of defendants' negligence to the jury. In considering this question, we bear in mind that cases are not lightly to be taken from the jury since they are the recognized triers of fact. On a motion for a directed verdict, we must accept as true all the facts favorable to the plaintiff which the evidence tends to prove and draw all reasonable inferences against the defendants. Warlich v. Miller, 3 Cir., 1944, 141 F.2d 168. If the evidence is of such a character that reasonable men in an impartial exercise of judgment might reach different conclusions, the case should be submitted to the jury. Larkin v. May Department Stores Company, 3 Cir., 1958, 250 F.2d 948, 950.

From the evidence it appears that on December 1, 1955 about 4:30 o'clock A.M. plaintiff's decedent sustained fatal injuries when his automobile crashed into the rear end of a tractor-trailer owned by defendant Robert F. Stegmeier and being operated by defendant Michael Povlick in the course of his employment by Stegmeier. The plaintiff's decedent died about 14 hours thereafter too severely injured to furnish any information as to the details of the accident. The plaintiff relied on the testimony of witnesses who arrived at the scene shortly after the occurrence of the accident and on the physical facts and circumstances of the collision. This evidence was, of course, circumstantial in nature but it nonetheless had probative value. For the testimony of eyewitnesses to an accident is not essential so long as there is affirmative proof of negligence. Lukon v. Pennsylvania R. Co., 3 Cir., 1942, 131 F.2d 327, 329; Van Tine v. Cornelius, 1947, 355 Pa. 584, 586, 50 A.2d 299, 300.

The collision occurred on State Highway Route 309, about five miles south of Tamaqua, Pennsylvania. After the accident both vehicles were found on Route 309, which, at the scene of the collision, is a four-lane highway with two northbound lanes and two southbound lanes, the northbound lanes being separated from the southbound lanes by concrete dividers. The vehicles were standing north of the northern exit of a crescentshaped private driveway, which entered the highway obliquely at two points. Plaintiff's witnesses did not agree on the distance of the tractor-trailer, which was 40 feet long, from the private driveway, one testifying that it was 10 to 15 feet away, another stating it was 20 feet away, another that it was 40 to 50 feet away, and another that it was 50 feet away. The topography of the land at the scene of the collision indicated that Route 309 was on an ascending grade as one approached the point of the impact from the south and at the scene of the impact north of the exit Route 309 was on a downgrade. The northern exit of the private road entered the highway at the crest of the rise, where the highway is relatively level before proceeding downgrade again. Povlick had evidently used the northern exit of the private driveway in order to gain access to Route 309.

The witnesses testified that the trailer was resting on the crest of the hill after the collision and the tractor was pointed downgrade. The trailer was straddling both northbound lanes in a northwesterly direction with its greater portion located in the easternmost northbound lane. The tractor was pointed in a northerly direction with its greater part also located in the easternmost northbound lane. A state trooper who investigated the collision stated that it appeared to him as if the tractor-trailer had just turned onto the highway and was about to straighten itself out before proceeding in a northerly direction. A motorist, Yenolevich, and his passenger, Kanarick, arrived at the scene of the collision shortly after it had happened. If it had not been for the fact that their attention was attracted by a flickering light which turned out to be a flashlight in the hand of Povlick they would not have had notice of the presence on the highway of the two vehicles involved in the collision, for the scene was in total darkness. Upon their arrival, Povlick left the scene to get his boss. There were no lights lit on the rear or side of the trailer nor were the headlights of the tractor lit. These two men maintained a vigil at the scene of the accident and attempted to render some assistance to plaintiff's injured decedent.

During the time that Povlick was absent from the scene, another motorist, Cunningham, and his passenger, Wagner, arrived at the scene of the accident. They also testified as to the position of the vehicles and the complete absence of lights anywhere upon the tractor or trailer. Cunningham and Wagner took the plaintiff's decedent to the Coaldale Hospital. At about 5:05 o'clock A.M. the state trooper arrived on the scene. He corroborated the testimony of the other witnesses as to the positions of the vehicles and testified that upon his arrival he, too, found no lights lit on the tractor or trailer. He directed Povlick, who had just returned to the scene of the accident, to turn on all of the lights of the vehicle. Five rear lights were found to be completely inoperative.

The plaintiff contends that under these facts Povlick was guilty of statutory negligence and the decedent was free of contributory negligence. We think it is...