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MCDONALD v. FERREBEE (03/19/51)

March 19, 1951

MCDONALD
v.
FERREBEE, APPELLANT



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.

COUNSEL

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]

OPINION BY MR. JUSTICE BELL

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, ...


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