Singer v. Messina

• Citation: 312 Pa. 129,167 A. 583
• Parties: SINGER v. MESSINA.
• Decision Date: 30 June 1933
• Court: Pennsylvania Supreme Court

167 A. 583
312 Pa. 129

SINGER
v.
MESSINA.

Supreme Court of Pennsylvania.

June 30, 1933.

Appeal No. 207, January term, 1933, from final judgment of Court of Common Pleas No. 1, Philadelphia County, March term, 1930, No. 5397; Harry S. McDevitt, President Judge.

Trespass for death by Oneita B. Singer, administratrix ad prosequendum of the estate of Arthur William Singer, against Joseph Messina. From a judgment for defendant non obstante veredicto of $4,500, plaintiff appeals.

Affirmed.

Argued before FRAZER, C. J., and SIMPSON. KEPHART, SCHAFFER, DREW, and LINN, JJ.

Laurence H. Eldredge and C. Brewster Rhoads, both of Philadelphia, for appellant.

Ward C. Henry, of Philadelphia, for appellee.

SCHAFFER, Justice.

Plaintiff brought this action to recover damages for the death of her husband, due, so she alleges, to the negligence of an employee of defendant. As the accident which caused his death took place in the state of New Jersey, she sues as administratrix ad prosequendum. The jury found a verdict in her favor. Judgment non obstante veredicto

167 A. 584

for defendant was entered by the court below. Plaintiff appeals.

On the night of December 19, 1929, plaintiff's husband was driving a large six-wheeled truck, weighing with its load about seventeen tons, along the Lincoln Highway from Philadelphia to New York. The truck was 35 feet long and 10 feet 6 inches high. About 10 o'clock he reached a low point in the road known as Mutton Hollow. It was a drizzly, rainy, very foggy night. Deceased stopped his truck in the Hollow, apparently because the lights had gone out. The highway was composed of a central strip of concrete and two outside strips of asphalt. It was wide enough to carry four trucks abreast. Instead of pulling over to the right side of the road and parking his truck longitudinally at its edge, or even more prudently placing it on a concrete strip 56 feet long and 8 feet 6 inches wide which extended beyond the roadway, within a few feet of where he did stop, the deceased brought the unlighted vehicle to rest with its right front corner at the curb and the body extending diagonally out into the roadway as far as the center thereof, thus occupying the entire space allotted to vehicles traveling on that side of the road. Just how long the lights had been out or the truck had been standing in this position before the accident happened was not shown and is left to conjecture.

Walter Saville, a witness who testified in plaintiff's behalf, was driving the last truck of a fleet of trucks proceeding in the opposite direction from that of the deceased. He observed the apparently unlighted truck as he passed it, stopped his own about 40 feet beyond, and, taking a lighted red lantern in his hand, walked back to the standing vehicle. When he reached it, he observed that it had no lights whatever. Ho walked around it and came upon the deceased, who had three unlighted lanterns in his hand which he had picked up from a stone pile alongside the road. He observed the deceased put two of these lanterns in the cab of his truck. Saville offered deceased the lighted red lantern which he (Saville) was carrying in order that it might be hung on the rear of the truck, saying to him: "If I were you I would put the ones back on the stone pile and I will give you this one. It may protect somebody else coming over the hill." He described deceased as having "got a little boisterous. When I seen he was that way I walked away from him. I just walked up the hill. I said a couple of words back to him and walked up the hill with my lantern. When he would not accept my light I started up hill to my truck to put it back where I got it."

When Saville walked away from the deceased, the latter was engaged in bending the handles on the rear of the truck to hang the still unlighted lantern on. As Saville walked up the hill, he observed a little flicker of light which he concluded was from a match with which deceased was about to light the lantern on the back of his truck. Just then he saw the two headlights of defendant's truck "coming over, out of the fog, down the hill," about 20 feet away. Saville was...