Appeal, No. 146, March T., 1950, from order of Court of Common Pleas of Butler County, Sept. T., 1948, No. 27, in case of Abel Fisher et ux. v. Floyd Sheppard et al. Order reversed.
J. Campbell Brandon, with him W.D. Brandon, Hugh S. Millar and Brandon & Brandon, for appellant.
Luther C. Braham and John C. Dillon, Jr., with them Zeno F. Henninger, and Galbreath, Braham & Gregg, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Abel Fisher and Emma Fisher, his wife, appellees, brought this action in trespass against Floyd Sheppard, Clyde Sheppard and Carlton Schneider to recover damages sustained when a tractor-trailer operated by Floyd Sheppard crashed into the rear of their building. GMC Truck and Coach Division, General Motors Corporation, appellant, was made an additional defendant, assertedly for the reason that the tractor purchased by the Sheppards from it was defective and that such defect was the proximate cause of the accident. A jury returned a verdict against the original defendants and appellant, providing therein that the former should pay 75% and appellant 25% thereof. A motion for a new trial was filed by the original defendants. Motion for judgment non obstante veredicto was filed by the additional defendant. The court below awarded a new trial. This appeal is from the refusal to enter a judgment non obstante veredicto in favor of the additional defendant.
Floyd Sheppard and Clyde Sheppard, on December 13, 1947, were the owners of a GMC tractor and Trailmobile trailer in which as agents of the defendant Schneider they were transporting 33,400 pounds of steel through the City of Butler. Floyd Sheppard was operating the vehicle. His equipment was admittedly overloaded, in violation of the laws of this Commonwealth and in excess of the maximum load of the vehicle as determined by the manufacturer, the additional
defendant and appellant here. He had left the Allegheny Ludlum Steel Company plant at West Leechburg about 1:00 a.m. on the morning of December 13, 1947, destined for Detroit, Michigan. Center Avenue in the City of Butler is a long hill. When at least five or six blocks from the top of the hill, he changed his transmission into second gear and turned a button on the panel of the dashboard which placed the truck in low range. He proceeded toward the top of the hill at a speed from three to six miles per hour, and as he reached the crest thereof he was traveling seven to eight miles per hour. He continued on approximately one-quarter of a block and was on a curve when he heard a grinding noise near the transmission and the tractor slipped out of gear. He gained momentum as he proceeded downward and endeavored to use his brakes, but did not have sufficient air. Being unable to stop the tractor-trailer, he kept his grasp on the wheel and endeavored to maintain control, but was unable to negotiate a turn at the foot of the hill and crashed into the rear of appellee's building.
Appellant's principal contention is that the evidence did not establish that the tractor was faulty either in design of construction.
The position of the original defendants, appellees, as regards proof of appellant's negligence is thus stated: "As you shift from your high to low range, the shift is accomplished by use of air pressure, and if [in] the attempt to get the truck back into gear, the air pressure is exhausted due to the breakdown of certain parts in the differential, sufficient evidence has been elicited to warrant reasonable men in declaring this is the negligence that caused the wreck." The theory of negligence appears to ...