Sweeney v. Bonacci, 9661

• Decision Date: 28 February 1949
• Docket Number: No. 9661,9662.,9661
• Citation: 173 F.2d 541
• Parties: SWEENEY v. BONACCI et al. HONEYWELL v. BONACCI et al.
• Court: U.S. Court of Appeals — Third Circuit

173 F.2d 541 (1949)

SWEENEY v. BONACCI et al. HONEYWELL v. BONACCI et al.

Nos. 9661, 9662.

United States Court of Appeals Third Circuit.

Argued November 4, 1948.

Decided February 28, 1949.

Raymond A. White, Jr., of Philadelphia, Pa., for appellants.

Henry Panfil, of Philadelphia, Pa. (Moore, Panfil & James, of Philadelphia, Pa., on the brief), for John Louis Sweeney.

J. Kennard Weaver, of Philadelphia, Pa., for Ernest W. Honeywell.

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

KALODNER, Circuit Judge.

These diversity of citizenship actions were brought pursuant to the laws of Pennsylvania¹ to recover for the death of two young men who died as a result of an accident which occurred at a point called Janney Hill in Pennsylvania along U. S. Route No. 1 ("Highway"). The jury returned substantial verdicts for the plaintiffs on which judgments were entered.² The defendants' motion for judgment under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., having been denied, these appeals were taken. The sole question presented for review is whether there was sufficient evidence of defendants' negligence to submit to the jury.

There is no dispute about the description of the Highway involved. It runs more or less in an east-west direction. There are four concrete lanes with an asphalt shoulder, a concrete gutter, and a high dirt embankment on each side. Traffic in the two north lanes travels west up the incline of Janney Hill to Philadelphia, Pennsylvania; traffic in the two south lanes travels east down the grade to Trenton, New Jersey. As at the trial, for convenience we shall also number the concrete lanes from 1 to 4 beginning with the northernmost westbound lane. Almost at the bottom of Janney Hill, toward Trenton, there is another roadway which meets the north side (Lane 1) of the Highway at right angles. This roadway we shall refer to as the "cut off".

The defendants' vehicle was a loaded tractor-trailer being operated, at the time of the accident, by one of their employees in the course of his employment. He had with him a woman companion, Ada Crawford. Proceeding east from Philadelphia to Trenton, the tractor-trailer first collided with a Ford, in which the plaintiffs' decedents were riding, and then with a Dodge coupe, occupied by one Tierney, who was driving, and its owner, one Lynch. The driver of the tractor-trailer died as a result of injuries sustained; Ada Crawford, Tierney, and Lynch were injured.

Viewed in favor of the plaintiffs, as it must be, the evidence concerning the accident is as follows. It happened at about 10:20 P.M. on March 29, 1947. The weather was clear and dry until that time, or a few minutes afterward, when a light rain began to fall. Several minutes prior to the accident, the Dodge approached the Highway on the cut-off and stopped to permit the Ford, which was traveling west on the Highway, to pass. After the Ford passed, Tierney made a right turn west onto Lane 1 of the Highway and continued in that lane up Janney Hill at a distance of approximately 200 feet behind the Ford, which was in Lane 2. The red "tail" lights of the Ford were visible. The two vehicles maintained the same speed, about thirty-five to forty miles per hour, and the same relative positions for about a half-mile when, still on the hill, Tierney saw a sudden "flash" and heard a "distant smash". Almost simultaneously Tierney and Lynch saw a "truck" coming at them "very fast" diagonally across the Highway from Lane 3. The "truck", we know now, was defendants' tractor-trailer. Tierney and Lynch both testified that at no time did they see any vehicle or the lights of any vehicle approaching in eastbound Lanes 3 and 4 until after the "flash" and "smash" when they first saw the tractor-trailer; at that time it showed no lights.

Several minutes after the collision, the tractor-trailer was found on its right side, headed east, in Lane 1 and on the asphalt shoulder north of it; its lights were out, and physical examination disclosed that its left front had been damaged by contact. The Dodge was on or against the side of the north embankment, facing west, about 75 feet above, or west, of the tractor-trailer; its lights were on, and its left side from the door to the rear proved where it had been struck by the tractor-trailer. The Ford was approximately 50 feet west of the Dodge, in Lane 1, facing east toward Trenton; while its front was severely damaged, it was evident that the initial impact was received at its left front. There was also evidence on behalf of the plaintiffs of various markings on Lanes 1 and 2, the north shoulder and the north embankment, imbedded in which were found pieces of red glass from a "tail" light of the Ford. Particularly noteworthy is the evidence concerning a mark extending for 127 feet from a point just north of the center of Lane 2 downward across Lane 1 and the asphalt shoulder to the gutter, whence began a deep gouge in the embankment extending for 70 feet. It was at about the end of this gouge that the tractor-trailer lay.

The testimony of Tierney and Lynch is crucial....