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March 19, 1951


Appeals, Nos. 30 and 3 , Jan. T., 1951, from judgment of Court of Common Pleas of Schuylkill County, July T., 1945, No. 288, in case of Charles P. McDonald v. Frank Ferrebee et al. Judgment affirmed.


James J. Gallagher, with him Gallagher and Gallagher, for appellants.

Cletus C. Kilker, with him Raymond L. Grennan, and Guy A. Bowe, Jr., for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 366 Pa. Page 544]


Plaintiff recovered a verdict against defendants in the amount of $13,000., for serious and permanent injuries to his legs and back. Defendants appealed, contending (1) that there was no evidence of negligence; (2) that the plaintiff was guilty of contributory negligence as a matter of law; and (3) that the court erred

[ 366 Pa. Page 545]

    in its charge to the jury. We shall examine the testimony, as we must on a motion for judgment n.o.v., "in the light most advantageous to the plaintiff. He must be given the benefit of every fact and every reasonable inference of fact arising therefrom and any conflict in the evidence must be resolved in his favor: Rich v. Petersen Truck Lines, Inc., 357 Pa. 318, 319, 53 A.2d 725; Welch v. Sultez, 338 Pa. 583, 590, 13 A.2d 399; Ashworth v. Hannum, 347 Pa. 393, 395, 32 A.2d 407": Levenson v. Lustman, 365 Pa. 244, 246, 74 A.2d 134.

Plaintiff was employed as a truck driver by an independent contractor to haul coal from a stripping pit on the property of the Buck Run Colliery Co. On March 29, 1944, at 7:30 o'clock a.m., he drove his loaded truck from the bottom of the pit to a road which extended on an ascending grade for a distance of approximately 300 feet. The road was 20 feet wide. Plaintiff drove a distance of only 4 feet along the road when his truck broke down. A co-employee placed a rock under the left rear wheel and the plaintiff placed another rock under the right rear wheel. Plaintiff then went to the shop for a mechanic. Panak, a co-employee, drove his loaded truck up the same grade, but while attempting to pass on the left of plaintiff's truck, got mired in the mud. Both trucks were accordingly disabled, side by side, and of course blocked the pit road.

In about an hour plaintiff returned with a mechanic. Plaintiff lay on his back underneath his disabled truck in an attempt to repair it. While in this position plaintiff could not see either forward or backward. Plaintiff knew that a bulldozer was available, nearby, to aid, among its other duties, a disabled vehicle if and when requested to do so by the driver thereof. Shortly thereafter the bulldozer came along

[ 366 Pa. Page 546]

    this road and Panak waved the operator to come forward to push, not plaintiff's, but his, truck. When Panak waved to Ferrebee the bulldozer was about 8 feet from the back of Panak's truck but to the right of Panak's truck. Panak then got inside his truck expecting to be pushed. Panak's engine and the engine of plaintiff's truck were still running. Plaintiff was on his back and he did not see or hear the bulldozer (nor did the mechanic working with plaintiff); and the operator of the bulldozer did not see plaintiff or know of his presence underneath the truck. Ferrebee, evidently mistaking Panak's aforesaid signal and without looking to see where the driver of plaintiff's truck was or whether anyone was under plaintiff's truck or in a position of danger, brought the bulldozer into contact with the rear of plaintiff's truck, and pushed it about one foot; the rear wheels of plaintiff's truck when pushed by Ferrebee, ran over and broke plaintiff's legs.

Under these facts and circumstances we are convinced that the question of the defendants' negligence and plaintiff's contributory negligence were clearly for the jury: Bailey v. Alexander Realty Co., 342 Pa. 362, 368, 20 A.2d 754; Levenson v. Lustman, 365 Pa 244, 246, 74 A.2d 134; Rea v. Pittsburgh Railways Co., 344 Pa. 421, 25 A.2d 730.

Appellant complains of one sentence in the charge of the court: "The plaintiff's negligent exposure of himself to danger... is a legally contributing cause of the harm if, but only if, it is a substantial factor in bringing about the harm." There is not the slightest doubt that a plaintiff is guilty of contributory negligence and cannot recover if his negligence contributed in any degree, however slight, to the injury: Grimes v. Yellow Cab co., 344 Pa. 298, 304, 25 A.2d 294; McFadden v. Pennzoil Co., 341 Pa. 433, 436, 19 A.2d 370;

[ 366 Pa. Page 547]

    same effect: Steele v. France, 363 Pa. 165, 167, 69 A.2d 368; Susser v. Wiley, 350 Pa. 427, 431, 39 A 2d 616; Commonwealth v. Moyer, 357 Pa. 181, 200, 53 A.2d 736.

In the present case the court, just before the sentence to which defendants object, charged the jury "If you come to the conclusion that the plaintiff's negligence contributed in any degree to the happening of the accident, your verdict must be for both defendants." We have read the entire charge of the court, and read and considered as a whole it contains no reversible error. We have considered all of defendants' other contentions but deem it unnecessary to discuss them.

Judgment affirmed.


Judgment affirmed.


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