Moore v. Meyer & Power Co.

• Decision Date: 22 April 1943
• Docket Number: 33
• Citation: Moore v. Meyer & Power Co., 347 Pa. 152, 31 A.2d 721 (Pa. 1943)
• Parties: Moore v. Meyer & Power Company, Appellant
• Court: Pennsylvania Supreme Court

31 A.2d 721

347 Pa. 152

Moore v. Meyer & Power Company, Appellant

No. 33

Supreme Court of Pennsylvania

April 22, 1943

March 29, 1943, Argued

Appeal, No. 33, March T., 1943, from judgment of C.P. Butler Co., Sept. T., 1941, No. 14, in case of Herbert Moore v Meyer & Power Company. Judgment reversed.

Trespass for personal injuries. Before WILSON, P.J.

Disagreement by jury which was discharged. Motion by defendant for judgment on whole record refused. Defendant appealed.

Judgment is reversed and judgment is here entered for appellant on the whole record.

Lee C McCandless, with him James E. Marshall, of Marshall & McCandless, for appellant.

J. Campbell Brandon, of Brandon & Brandon, with him Carmen V. Marinaro, for appellee.

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

OPINION

MR. JUSTICE PATTERSON:

Herbert Moore, appellee, instituted this action in trespass to recover for personal injuries sustained as a result of a collision between an automobile in which he was riding as a passenger and a truck allegedly belonging to Meyer & Power Company, appellant. The question of negligence and agency of the driver of the truck were submitted to a jury which failed to agree and was discharged. Meyer & Power Company filed a motion for judgment on the whole record, which was refused, and it then took this appeal.

The accident occurred about 1 p.m. on February 5, 1940, while appellee was a guest passenger in a Ford sedan owned and operated by one Charles Young. Young was proceeding north on Route No. 68, a sixteen-foot concrete highway running between Butler and Chicora, Pennsylvania, at about 35 miles per hour. The highway at the point of accident is comparatively straight for a distance of 300 feet. There was slush and snow along both sides of the highway, but the traffic lanes of the highway were free from slush and snow. At the same time a truck, upon the sides of which were the words "Meyer & Power Ice Cream", driven by one Wallace, was proceeding south on Route 68, at a speed also estimated at 35 miles per hour. The drivers of the respective vehicles first observed each other when about 200 feet apart and both vehicles were on their proper side at that time. Young, driver of the automobile in which appellee was riding, edged his vehicle toward the right, mistakenly believing that there was insufficient room to enable the oncoming truck to pass. When its rear wheels came into contact with the snow and slush on the berm, the sedan suddenly swerved and skidded across the highway at right angles to and directly in front of the oncoming truck which struck it broadside. Whether the sedan had come to a stop or was still in motion at the time of the collision does not appear and the appellee's evidence does not establish the distance between the two vehicles when the skid began. On appellant's side of the case, Wallace, the driver of the truck, stated he was about fifty feet from the sedan when it skidded into his path, and he immediately drove his truck to the right and off the paved portion of the highway, but was unable to bring it to a stop in time to avoid the collision, despite his best efforts. At the time of the impact the sedan was two-thirds off the highway, the rear wheels remaining on the concrete, and the truck was off the improved portion of the highway with the exception of the two left wheels.

In the view we take of the case, the sole question is whether appellee has sustained the burden resting upon him (Cox v. Wilkes-Barre Railway Corp., 340 Pa. 554, 560), of showing sufficient opportunity, after the appearance of danger, for appellant's driver to have avoided the collision by the then exercise of reasonable care, to warrant any inference of negligence by reason of his failure to do so. Viewing the evidence most favorable to the appellee and giving him the benefit of all inferences which might properly be deduced therefrom, we conclude, contrary to the court below, that he failed to sustain this burden.

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