over the driver, a vital issue. Holzer-testified that it was not a matter of changing a driver from one truck to another, but he did not put this on the ground that Wilky could not shift drivers, but on the ground that such a change was inadvisable because each driver knew his own truck. The defendant has failed to show that Wilky could not or did not exercise control of the "manner and means" by which the driver was to perform his duties.
Accordingly, on the slim evidence presented by the defendant, it cannot be said it has met the burden of the presumption "that the driver was his servant" as stated in Readshaw v. Montgomery, supra.
In consonance with the above, I therefore make the following
Findings of Fact
1. That Howard J. Gramlich was the driver of the commercial vehicle, a tractor and trailer, which was involved in the accident on August 2, 1941, on Route 611 near Portland, Northampton County, Pennsylvania, which resulted in injuries to the plaintiffs.
2. That the names "Wilky Carrier Corp." and "Earl L. Welty" appeared on the vehicle operated by Gramlich.
3. That the Wilky Carrier Corp. was lessee of the vehicle operated by Gramlich.
4. That the said Howard J. Gramlich was the employee of and on the business of the defendant Wilky Carrier Corp. at the time of the accident.
5. That said Howard J. Gramlich was guilty of negligence which directly resulted in injuries to the plaintiffs.
6. That the plaintiffs were free and clear of contributory negligence.
7. That the plaintiff, Emil O. Young, sustained injuries to his left shoulder, left chest, left knee and head. He suffered concussion of the brain and a fracture of the left scapula, which extended to the joint of the left shoulder, with fracture of the left clavicle and a fracture of the first, second and third ribs. He suffered fracture of the upper end of the left tibia which extended into the knee joint. His knee injury resulted in a definite limitation of motion of the left knee resulting in a permanent limp. He was hospitalized for a month.
8. That Raymond Young, minor son of the plaintiff, Emil O. Young, sustained a fracture of the lower third of the left humerus; also abrasions of the face and lacerations of the right upper lip requiring sutures. He was hospitalized for 16 days. The injury to his left arm has resulted in a deformity with an outward bowing of the arm and loss of carrying angle. The injury is permanent.
9. Doris Young, minor daughter of the plaintiff, Emil O. Young, suffered contusion of the forehead with a formation of hematoma and she suffered headaches for some 4 or 5 months. She was hospitalized for 12 days.
10. That Pauline Young, wife of the plaintiff, Emil O. Young, suffered a slight cerebral concussion, bruises and contusions of the body. She was hospitalized for 12 days.
11. That plaintiff, Emil O. Young, had out-of-pocket expenses for medical treatment and hospitalization of approximately $1550.00 and loss of earnings of $883.00.
I state the following
Conclusions of Law
1. That the defendant, Wilky Carrier Corp., through its servant or employee was guilty of negligence that was the proximate cause of the accident, resulting in injuries to the plaintiffs.
2. That the plaintiffs were free of contributory negligence.
3. That under the pleadings and all of the evidence the findings of the court should be for the plaintiffs.
4. I find in favor o the plaintiff, Emil O. Young in his own right, and against the defendant, Wilky Carrier Corp. in the sum of $10,000.
5. I find in favor of the plaintiff, Emil O. Young as guardian for Raymond Young, in the sum of $1,750.
6. I find in favor of the plaintiff, Emil O. Young, as guardian for Doris Young, in the sum of $750.
7. I find in favor of the plaintiff, Pauline Young, in the sum of $750.
The Clerk may enter Judgment in accordance with this opinion.
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