White v. Rosenberry

• Citation: 271 A.2d 341,441 Pa. 34
• Parties: Arthur J. WHITE v. Sheldon William ROSENBERRY, Appellant, and Herdco, Inc., Defendants, and Nancy J. Keller Gering, Additional Defendant.
• Decision Date: 12 November 1970
• Court: United States State Supreme Court of Pennsylvania

Page 341

271 A.2d 341

441 Pa. 34

Arthur J. WHITE v. Sheldon William ROSENBERRY, Appellant, and Herdco, Inc., Defendants,

and

Nancy J. Keller Gering, Additional Defendant.

Supreme Court of Pennsylvania.

Nov. 12, 1970.

Rehearing Denied Dec. 17, 1970.

Richard A. Bausher, Stevens & Lee, Reading, for appellant.

Richard W. Cleckner, Cleckner & Fearen, Harrisburg, J. R. Whitman, Lewis, Brubaker, Whitman & Christianson, Lebanon, for Arthur J. White.

Stanley W. Katz, Davis, Katz, Buzgon & Davis, Lebanon, for Nancy J. Keller Gering.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION

O'BRIEN, Justice.

On July 31, 1964, at or about 1:15 p.m., the appellant, Sheldon William Rosenberry, was operating a tractor-trailer truck in a northwardly direction on Route 72 in Lebanon County, Pennsylvania. At the same time, appellee Nancy J. Keller, now Gering, was driving a 1959 Austin Healy sports automobile in a southwardly direction on the same highway. Mrs. Gering lost control of her sports car and sideswiped the Rosenberry truck. As a result of the impact she was thrown from her automobile onto the surface of Route 72.

Mrs. Gering's plight was witnessed by Rosenberry and by Arthur White, who had been driving his car behind Rosenberry's truck. Rosenberry immediately pulled his vehicle forward approximately one hundred feet, pulled over off the right side of the road as far as he could go, pulled on his emergency brake and engaged the brake lever on the steering column. Leaving the engine running in order to keep the pressure elevated in the braking system, he jumped out of the cab and started to race to where Mrs. Gering was lying on the road. At the same time, Arthur White pulled his car off the road a short distance south of where Mrs. Gering lay and also ran to her assistance.

White got to Mrs. Gering first. As he was bending over to talk to her, he heard a noise, looked up and saw Rosenberry's tractor-trailer four to six feet away from him rolling down the hill. Rosenbery, who was still five to ten feet from Mrs. Gering heard the truck, turned around and tried to get into the cab but was unsuccessful. Mrs. Gering was able to roll out of the path of the runaway truck; Mr. White was not. He was struck by the rear of the tractor sustaining serious bodily injuries.

White brought suit against Rosenberry for his personal injuries. Rosenberry joined Mrs. Gering as an additional defendant. At the conclusion of a five-day trial, on March 22, 1968, the jury returned a verdict against both Rosenberry and Gering in the amount of $146,723.30.

On March 26, 1968, Gering filed a motion for a new trial and for judgment n.o.v. After other proceedings, which need not concern us here, see White v. Rosenberry, 434 Pa. 115, 252 A.2d 707 (1969), Gering's motion for judgment n.o.v. was finally argued and, in an opinion dated March 23, 1970, the court granted the motion. Rosenberry, the original defendant, appealed.

The court's opinion indicated that its ruling was based on a belief that the legal effect of the negligence of appellee Gering terminated when she was lying on the highway and the appellant had pulled to a stop, and that the appellant's negligence in improperly braking his truck then constituted an intervening force which produced White's injuries. According to the court's opinion, appellant's conduct in relying on a combination of his emergency brake and his air brake to keep his truck motionless was so reckless, and consequently so extraordinary, that it should relieve appellee Gering of all liability to White.

We do not agree.

In considering the motion of appellee Gering for judgment n.o.v., the evidence together with all reasonable inferences therefrom must be considered in a light most favorable to the appellant, Rosenberry, as he must be considered the verdict winner in this situation.

In this light, the facts surrounding both parties' possible liability to White are as follows:

(1) Mrs. Gering was negligent in colliding with the appellant. As a result of her own negligence, she was thrown from her automobile onto the road, where her position created very serious risks of further injury to her.

(2) Upon discovering Gering's precarious position, appellant quickly pulled over to the side and with the motor running so his airbrakes would operate, he parked, using his airbrakes in combination with his emergency brake. The truck remained motionless until after appellant had alighted from the truck and had started down the hill toward the appellee.

(3) Appellant was negligent in attempting to stop his truck on an incline, in failing to put the truck in gear, in failing to turn off the engine, and in relying upon airbrakes which were clearly labelled as not to be used for parking. A reasonably prudent truckdriver who wished to stop a truck on that road would have stopped at the top, turned off the engine, engaged the gears and blocked the tractor wheels with the wooden blocks provided for that purpose.

(4) Appellant was in a highly emotional state as the result of the accident and his concern for Gering's safety. Moreover, the airline leading to the trailer brakes of the truck was broken by the collision with Gering. Both of these situations were the natural result of the collision proximately caused by Gering's negligence.

In the absence of any cited cases which are sufficiently similar to these facts to be of any help in analyzing them, the court below relied on the Restatement of Torts, § 435(a), (1948 Supp., Page 736) for a statement of the applicable law. Th...