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TOENGES v. SCHLEIHAUF (06/27/51)

June 27, 1951

TOENGES, APPELLANT,
v.
SCHLEIHAUF, APPELLANT



Appeals, Nos. 52 and 53, March T., 1950, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1946, No. 1747, in case of Albert Louis Toenges, Exr., Estate of Maggie Mae Toenges, Deceased, et al., v. L. E. Schleihauf, trading as Empire Lumber Company. Judgments affirmed.

COUNSEL

John E. Evans, Sr., with him Evans, Ivory & Evans, for plaintiff.

Sanford M. Chilcote, with him Dickie, Robinson & McCamey, for defendant.

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

Author: Stern

[ 368 Pa. Page 248]

OPINION BY MR. JUSTICE HORACE STERN

As the court below correctly decided, the contributory negligence of the decedent bars the right of the executor of her estate to recover damages in this action because of her death.

[ 368 Pa. Page 249]

As far as defendant's negligence is concerned the testimony clearly revealed it and it was factually established by the verdict of the jury. At about four o'clock in the afternoon of a March day a truck, a tractor-trailer, employed in defendant's business, heavily loaded with lumber, was being operated over a public highway in Allegheny County known as Curry Hollow Road. The day was clear and bright and the road was dry. The truck became disabled while ascending a slight grade in the road. Another truck hauled it over the crest of the ridge to a point 170 feet beyond. There its driver permitted it to stand covering all the westbound lane of traffic except about two or three feet. In the centre of Curry Hollow Road there is a four foot divider about six inches high, the traffic lane on each side being ten feet wide. The tractor-trailer remained parked in its position of blockage for about fifteen to twenty minutes before the occurrence of the accident which is here involved. No red flags were placed along the highway or at the truck, nor were any other warnings given to approaching traffic. The operator left the truck in order to telephone for aid, leaving his helper sitting in the cab reading.

At about 4:15 o'clock the decedent, Mrs. Toenges, was driving her husband's automobile in a westerly direction on Curry Hollow Road. She was accompanied by a maid whom she employed one day a week for housework and domestic service and whom she was taking home after the day's work. She came up to the crest of the hill, proceeded from there down the slight incline on the other side, and crashed into the parked truck, the lumber on which, extending out several feet beyond the rear of the truck, went through the windshield of her automobile, killing Mrs. Toenges and seriously injuring the maid. Mrs. Toenges' husband, executor of her estate, brought suit to recover damages

[ 368 Pa. Page 250]

    on behalf of the estate and under the wrongful death act, and also in his individual capacity for the damage to his car. The jury returned verdicts in favor of the plaintiff as executor aggregating $8,843.56 and a verdict for the plaintiff individually in the sum of $900. The court en banc entered judgment n.o.v. in favor of the defendant as to the verdicts of $8,843.56, and ordered entry of judgment in favor of the plaintiff on the $900 verdict. The plaintiff appeals from the judgment n.o.v. in favor of defendant while the defendant appeals from the judgment of $900 in favor of plaintiff covering the damage to his car.

The driver of defendant's truck claimed that he could not safely take it off the paved highway because the berm at that point was soft, but plaintiff produced evidence to show that it could readily have been drifted a short distance further down the incline to a point where the berm was more solid. The jury, under proper instructions of the court, found that the driver was guilty of negligence in leaving the truck standing upon the paved portion of the highway when it was practicable to park it otherwise, and without red flags or other warning signals, in ...


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