Stark v. Fullerton Trucking Co.

• Citation: 318 Pa. 541,179 A. 84
• Decision Date: 27 May 1935
• Docket Number: 117
• Parties: Stark, Appellant, v. Fullerton Trucking Co. et al
• Court: Pennsylvania Supreme Court

179 A. 84

318 Pa. 541

Stark, Appellant, v. Fullerton Trucking Co. et al

No. 117

Supreme Court of Pennsylvania

May 27, 1935

Argued May 14, 1935

Appeal, No. 117, Jan. T., 1935, by plaintiff, from judgment of C.P. Lancaster Co., Aug. T., 1932, No. 93, in case of Romain M. Stark v. Fullerton Trucking Co. et al. Judgment affirmed.

Trespass for wrongful death. Before ATLEE, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff in amount of $5,020.50. Judgment entered for defendant n.o.v. Plaintiff appealed.

Error assigned was order making absolute rule for judgment n.o.v.

The judgment of the court below is affirmed.

Chas W. Eaby, for appellant.

Harris C. Arnold, with him John A. Coyle, for appellee.

Before SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

PER CURIAM.

On June 21, 1932, at about 9 p.m. daylight saving time, a heavily-laden truck of the Fullerton Trucking Company, one of the defendants, was traveling eastwardly on the Lincoln Highway, a public road of this Commonwealth. When the truck reached a point some three miles east of the City of Lancaster, where the highway runs eastwardly down hill, it broke down at or near the foot of the hill. The means for repairing the injury not being available from a point nearer than New York, the truck had to remain stalled where it was, until those means came to it from that city. About 4:35 a.m. daylight saving time of the next day, another large truck, owned by S. Novey, the other defendant, and carrying a used or injured automobile, came over the hill and ran down into the stalled truck. Five or ten minutes later, still another but smaller truck, owned by the Shock Independent Oil Company, and being driven by one Howard Stark, also came over the top of the hill, ran down it, plunged into the rear of and ran under the Novey truck, and immediately burst into flames. Howard Stark, the driver, who was the husband of Romain M. Stark, the plaintiff, died as the result of the burning he then and there received.

Mrs. Stark sued the Fullerton Trucking Company and S. Novey, to recover damages for the death of her husband. At the ensuing trial she was nonsuited, so far as concerned S. Novey, but recovered a verdict against the Fullerton Trucking Company. Subsequently, the court in banc entered a judgment non obstante veredicto in favor of the Fullerton Trucking Company, because of the alleged contributory negligence of plaintiff's husband, and refused to set aside the nonsuit in favor of S. Novey. She thereupon appealed, assigning as error the entry of judgment non obstante veredicto. No complaint is made respecting the nonsuit in favor of S. Novey. The judgment must be affirmed.

It is more than doubtful whether there was any evidence of the negligence averred in the statement of claim as against the Fullerton Trucking Company, appellee, but we prefer to plant our affirmance of the judgment non obstante veredicto on the reason given by the court below for entering it.

As already stated, the two collisions took place at 4:35 a.m and 4:40 or 4:45 a.m. daylight saving time on June 22, 1932. This was one of the longest days of the year, and, as every one knows, daylight is breaking at that time on that day. All of the witnesses who testified on the point agree as to this. The day was clear, and some say they could and did then see 435 feet, from the top of the hill to the place of the...