Zentz v. Buchman

• Citation: 103 F.2d 850
• Decision Date: 04 May 1939
• Docket Number: No. 6392.,6392.
• Parties: ZENTZ et al. v. BUCHMAN.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

103 F.2d 850 (1938)

ZENTZ et al. v. BUCHMAN.

No. 6392.

Circuit Court of Appeals, Third Circuit.

September 21, 1938.

Rehearing Denied May 4, 1939.

I. Nathaniel Treblow and Benjamin O. Frick, both of Philadelphia, Pa., for appellants.

Frank J. Eustace, Jr., Francis M. McAdams, and McAdams, Eustace & McAdams, all of Philadelphia, Pa., for appellee.

Before BUFFINGTON and BIGGS, Circuit Judges, and WATSON, District Judge.

BIGGS, Circuit Judge.

This appeal concerns an accident which occurred about six o'clock in the morning upon September 6, 1934, upon the Roosevelt Boulevard, leading from Philadelphia to New York City. The appellee, Rose R. Buchman, was a passenger in an automobile driven by her son, Harold J. Buchman. At the time of the occurrence of the accident, the appellants, by their agent and employee Luther Zentz, were operating a truck to which was attached a trailer eighteen feet long. The Roosevelt Boulevard at this point consists of two one way lanes, running respectively north and south, divided by a grass plot or "island" thirty-four feet wide. The trailer-truck was upon the north lane of the Boulevard ahead of the car occupied by Mrs. Buchman. At the point of the occurrence of the accident the lane is twenty-seven feet, two inches wide.

As to the reason for occurrence of the accident, two conflicting stories were told to the jury. The appellants maintain that Harold Buchman, who was a defendant in his mother's suit against the appellants, had been driving the automobile all night, having left Latrobe, Pennsylvania, about seven-thirty o'clock the evening before. The driver of the truck testified that he was driving toward New York, and that the truck was moving along the Boulevard at a distance of a foot and a half from the right hand edge of the road; that he felt that the truck had a flat tire and pulled to the right hand side of the road to within an inch and a half or two inches of the curb where he stopped the vehicle; that he got off the truck and went around to the tool box on the right hand side of the trailer and was getting a jack and tools to change the tire when the Buchman automobile crashed into the rear of the trailer. The driver's testimony is corroborated to no little extent by a park guard, Merkle, who saw the truck stop. The driver of the truck also testified that the position of the trailer-truck immediately after the accident was with its right rear wheels against the right hand curb as shown by the photograph (Exhibit D-2), and that the trailer was so damaged by the collision that it could not be moved.

Harold Buchman, called by the appellants upon cross-examination, testified that the Buchman car, driven by him, was proceeding upon the right hand side of the Roosevelt Boulevard toward New York and was about six hundred feet distant from the truck when he first saw it; that he did not know whether the truck was then in motion; that he drove at the rate of about thirty-five miles per hour toward it, and when he was about one hundred fifty feet distant from it he noticed it was not then in motion. He testified that it appeared to him to be standing still and was parked over toward the center of the highway; that as the automobile neared the truck he commenced to pass it upon the right hand side when, without warning, the truck started pulling toward the right hand side of the road. He stated that therefore the automobile was caught or was by way of being caught between the truck and the right hand edge of the road where there was a concrete curb; that he tried to swerve the car out, applied his brakes very fast and the front of the automobile crashed into the rear end of the trailer.

As a result of the accident Rose R. Buchman received severe injuries and the jury assessed damages of $7,500 in her favor.

The appellants moved for binding instructions, for judgment in their favor upon a point reserved and for a new trial. The learned District Judge overruled these motions. The appeal to this court followed.

The learned District Judge stated in his opinion upon motion for a new trial, "When he (Harold Buchman) said that the Zentz truck was parked over toward the center of the highway it seems clear to me that he meant that it was parked over toward the grass plot which takes up the center of the Roosevelt Boulevard at that point. * * * Under his testimony he had ample room to pass the truck on the right and was not guilty of negligence as a matter of law in attempting to do so. Grein v. Gordon, 280 Pa. 576, 124 A. 737, 34 A.L. R. 1511. On the other hand the truck driver was guilty of negligence if, as Harold Buchman testified, he...