The opinion of the court was delivered by: MCVICAR
Leopold Rosenal, Administrator of the Estate of Bernard Rosenal, deceased, brought this action on behalf of the next of kin of the decedent based upon the Pennsylvania Statutes of 1851 and 1855 and also, an action as Administrator on behalf of the Estate based on Sec. 35(b) of the Fiduciaries Act of 1917, as re-enacted by the Act of 1937, P.L. 2755, 20 P.S.C. 3 Appendix, § 772. The two actions were consolidated and brought against the United States based upon the Federal Tort Claims Act.
The case was tried without a jury and the following Findings of Fact, Conclusions of Law, Opinion and Order have been made by the Court.
1. On August 24, 1947, a convoy of thirteen Army vehicles left Fort Monroe, Virginia, for South Park, Allegheny County, Pennsylvania.
3. Four of the thirteen vehicles were armored cars, and the fourth armored car in the convoy was driven by Sergeant Homer Ulrich.
4. At about 1:45 P.M. August 26, 1947, the armored car driven by Sergeant Ulrich, while following the three other armored cars of the convoy, had completed an upgrade to the crest of a hill on Curry Hollow Road, traveling in a southerly direction.
5. Curry Hollow Road is made up of two 9 foot lanes, with a center strip of asphalt, having a 2 to 4 inch elevation and a width of about 4 feet.
6. The armored car had four forward speeds and a reverse gear.
7. As the armored car proceeded over the brow of the hill and began its descent, Sergeant Ulrich shifted from low through second and third, and was attempting to shift into the fourth and fastest forward gear, when the left front wheel of the armored car struck the dividing strip of the highway, made several spins and proceeding on its own left hand side of the highway, struck a Hudson car proceeding in a northerly direction along Curry Hollow Road, in which the decedent was a passenger, sitting in the back seat.
8. A heavy rain was falling at the time of the collision and visibility was limited.
9. The driver of the Hudson car, upon perceiving the erratic course of the armored vehicle, pulled the Hudson car sharply to the right in an attempt to avoid the collision.
10. At the time of the collision, at least two wheels of the Hudson car were on the berm, off the cartway to its own right side of the highway.
11. The decedent, as a result of the impact, was thrust through the back of the car and was killed instantly.
12. Three similarly constructed armored cars, a part of this convoy, had passed over this same point ...