Appeal, No. 106, Jan. T., 1951, from order of Court of Common Pleas of Carbon County, Oct. T., 1949, No. 50, in case of Ernest J. Szukics v. Kenneth Ruch. Order reversed.
Laurence H. Eldredge, with him Martin H. Philip and Philip & Philip, for appellant.
Ben Branch, with him Sidney R. Webb, for appellee.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This action in trespass was instituted by Ernest J. Szukics, appellant, against Kenneth Ruch, appellee, to recover for personal injuries sustained when Szukics, while standing at the side of a disabled car to assist in its removal from one of the traffic lanes on a three-lane bridge, was struck by an automobile driven by Ruch. The trial judge granted appellee's motion for a compulsory non-suit, holding appellant guilty of contributory negligence as a matter of law for the reason that he had his back toward known oncoming traffic. This appeal is from the order of the court below dismissing his motion to remove the compulsory non-suit.
Ernest J. Szukics, appellant, is one of six young men who met at a restaurant in Palmerton in early morning, April 2, 1949, after driving around in two automobiles during the previous evening. One car, a Buick, was driven by appellant, and riding with him were Vargo, Oravec and Bucko. The other car, a cream colored Plymouth convertible, was driven by Sikorsky, and riding with him was Sauers.Szukics and his companions left the restaurant in the Buick at about 2:15 a.m. and drove eastwardly toward a bridge which crosses the Lehigh River. The bridge is 34 feet six inches across the roadway, or three automobile traffic lanes wide. It lies in a general east-west direction, and its western approach joins a curve from the southwest. He was followed shortly thereafter by Sikorsky and Sauers
in the Plymouth. Sikorsky passed the Buick before it reached the bridge. He did not successfully negotiate a curve leading to the west end of the bridge and his car skidded about 150 feet, jumped a curb eight to ten inches high, and scraped the left side of the car along the concrete wall on the north side of the bridge for about 172 feet before coming to a stop. The Plymouth was then headed in a general southerly direction, across the north lane of the roadway, with the rear wheels resting on the pavement on the north side of the bridge.
Szukics stopped his car off the highway at the west end of the bridge and he and his companious hurried to the Plymouth car, arriving there just as Sikorsky and Sauers, apparently uninjured, got out of the car. Lights of an automobile were observed by all of the boys nearing the eastern approach to the bridge. The bridge was 1,539 feet in length. Sikorsky, Bucko and Vargo ran along the roadway eastwardly about 30 or 40 feet to head off the approaching car. They waved their arms and a flashlight. Sikorsky, who had the flashlight, stood on the south edge of the north lane. The night was clear and the roadway was dry.
Appellant continued to examine the damage to the left side of the Plymouth car and, contemplating raising the left front fender from the tire upon which it was pressing so that the car could be moved, had his hands on the fender and therefore his back toward the approaching car. Oravec was standing on appellant's left nearest to the center lane of the bridge, and Sauers was on appellant's right.
Appellee came upon the bridge and was traveling westwardly in the north lane with his lights turned on. The damaged Plymouth car standing across the same lane was without lights, but the scene of the accident was illuminated by nearby mercury-vapor ...