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SHANER v. SMITH (05/21/51)

May 21, 1951

SHANER
v.
SMITH, APPELLANT



Appeals, Nos. 88 and 89, Jan. T., 1951, from judgments of Court of Common Pleas of Montgomery County, June T., 1949, Nos. 159 and 374, respectively, in cases of Leroy M. Shaner v. John W. Smith and W. Marshall Anders et ux. v. John W. Smith et al. Judgments affirmed.

COUNSEL

Victor J. Roberts, with him High, Swartz, Flynn & Roberts, for appellant.

S. Walter Foulkrod, Jr. and Frank R. Ambler, with them Duffy, McTighe and McElhone and Desmond J. McTighe, for appellee (Appeal No. 88).

Nicholas H. Larzelere, for appellee (Appeal No. 89).

Before Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Stearne

[ 367 Pa. Page 422]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The two appeals are from two judgments in actions of trespass which arose from the same automobile accident. An automobile owned and operated by John W. Smith and a tractor-trailer owned by Leroy M. Shaner collided. One suit is by W. Marshall Anders and his wife against Smith and Shaner to recover for damage done to their dwelling. The other suit is brought by Shaner, the owner of a tractor-trailer, against Smith for damages to the motor unit. The jury in each case found for the plaintiff against Smith only. The driver of the tractor-trailer was killed but any claim in connection with such death is not before us. The court below submitted the issues of negligence and contributory negligence to the jury which, as stated before, found for the respective plaintiffs. The

[ 367 Pa. Page 423]

    amounts of the verdicts are not in question. Appellant filed motions for judgments n.o.v. It is from the judgments entered on the verdicts for the plaintiffs that appellant appeals.

All the evidence was produced by plaintiffs. Defendant did not testify or offer any evidence. Plaintiffs' witnesses testified that on a clear dry day at about 2:30 p.m. the tractor-trailer unit owned by Shaner and operated by Esworthy (killed in the accident) was proceeding west along Ridge Pike approaching Joshua Road which intersects Ridge Pike at a right angle. At that point Ridge Pike is fifty feet wide and a through highway and consists of four lanes of concrete and two five-foot shoulders. An automobile operated by Smith was proceeding south on Joshua Road, a macadam highway twenty feet wide running north and south. An official stop sign is located on Joshua Road at the northwest corner of the intersection. Clear vision exists at the northeast corner of this intersection, looking from Joshua Road east to Ridge Pike. When about 300 to 400 feet from the intersection and traveling at about 35 to 45 miles per hour, the tractor-trailer was seen to swerve from the far north lane of Ridge Pike (its own far right hand lane) to the inside, westbound lane, next to the center line of the highway. Its horn was blown several times. Smith entered the intersection. The left front side of the automobile collided with the right front of the tractor-trailer. The tractor-trailer then jack-knifed, swerved to its left and after hitting a pole and a stone wall came to rest, overturned against the front of the Anders house. The tractor-trailer caught fire and was totally destroyed. The front of the Anders house was damaged by fire. The Smith car came to rest against a telephone pole 175 feet west of the intersection.

Appellant contends that judgments n.o.v. should have been entered upon two ...


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