Rinard v. YBH Sales and Service Co.

• Decision Date: 16 March 1964
• Docket Number: No. 14449.,14449.
• Citation: 328 F.2d 959
• Parties: Ronald C. RINARD, Appellee, v. Y B H SALES AND SERVICE CO., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

328 F.2d 959 (1964)

Ronald C. RINARD, Appellee, v. Y B H SALES AND SERVICE CO., Appellant.

No. 14449.

United States Court of Appeals Third Circuit.

Argued November 7, 1963.

Decided March 16, 1964.

Michael A. Foley, Philadelphia, Pa., for appellant.

Milton M. Borowsky, Philadelphia, Pa. (Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.

Before STALEY, HASTIE and SMITH, Circuit Judges.

WILLIAM F. SMITH, Circuit Judge.

The trial of this action for personal injuries resulted in a jury verdict in favor of the appellee and the entry of judgment thereon. Thereafter the appellant made a timely motion for judgment in accordance with its earlier motion for a directed verdict and, in the alternative, for a new trial. Fed.Rules Civ.Proc., rule 50(b), 28 U.S.C.A. The motion was denied and the present appeal followed. The question raised on this appeal is a narrow one. The appellant argues that it was entitled to prevail on its motion for judgment because the appellee's testimony clearly disclosed that he was guilty of contributory negligence.

It is the settled law of Pennsylvania, under which the only question here raised must be decided, that "contributory negligence as a matter of law should be declared only in a very clear case and only where the evidence of such is so clear and palpable that there is no room for fair and sensible men to differ in their conclusions as to its existence." Dougherty v. Philadelphia National Bank, 408 Pa. 342, 184 A.2d 238, 239 (1962), and the cases therein cited; Rafferty v. Di John, 390 Pa. 123, 135 A.2d 375 (1957). Where the facts and circumstances disclosed by the evidence are reasonably susceptible of either of two inconsistent inferences, a jury question is presented. Ibid. We are required to consider the evidence in the light of these principles and in the view most favorable to the appellee.

In April of 1959, the appellee purchased a Volkswagen sedan from the defendant and, under the terms of the purchase agreement, was entitled to periodic service for a limited time. On June 1, 1959, the appellee delivered the vehicle to the appellant's garage for the purpose of having it serviced and checked. When he returned for his car later in the day, he was requested to accompany an employee of the appellant on a road test; this employee was admittedly an experienced mechanic. With the mechanic operating the vehicle, they proceeded along West Chester Pike to Bryn Mawr Avenue, a distance of approximately two miles. While en route the mechanic observed the operation of the vehicle and made various manual tests, particularly of the steering mechanism.

The mechanic brought the vehicle to a stop shortly after they entered Bryn Mawr Avenue, and he then requested the appellee to get behind the steering wheel. The Avenue was a winding macadam road of sufficient width to accommodate two...