Appeals, Nos. 164 to 167, inclusive, March T., 1951, from judgments of Court of Common Pleas of Westmoreland County, Feb. T., 1948, No. 158, in case of Joseph Discovich, a minor, by his guardian, Stephen Discovich, and Stephen Discovich et ux., v. Chestnut Ridge Transportation Company, Trans-Oil, Inc., and E. Brooke Matlack, Inc. Judgment for parents of minor, as reduced, against Trans-Oil, Inc., affirmed; judgment for minor plaintiff, against above defendant, affirmed; judgment for plaintiff against E. Brooke Matlack, Inc., reversed.
Carroll Caruthers, with him Herman C. A. Hofacker and William F. Caruthers, for appellants.
James Gregg, with him Vincent R. Smith and Louis E. Sensenich, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
These are four appeals in an action in trespass from a judgment against two corporations because of a motor accident. The plaintiffs are Joseph Discovich, a minor, by his guardian, and his parents. The original defendant is the Chestnut Ridge Transportation Company which brought in as additional defendants two corporations: Trans-Oil, Inc. and E. Brooke Matlack, Inc. The jury answered specific findings of fact and by their verdict found that the transportation company was not liable but that each of the additional corporations was liable.
President Judge LAIRD, of the court below, reviewed the testimony at length in a most fair and impartial charge. In summary: the accident occurred at or near the intersection of the Lincoln Highway, U.S. Route No. 30, running east and west and a cross road running north and south, in Unity Township, Westmoreland County. The accident was in mid-afternoon on March 3, 1947, when there was snow on the sides of the roads and patches of ice thereon. The transportation bus, traveling west toward Greensburg, stopped at or near the intersection to discharge passengers. The minor plaintiff was a passenger in the bus. A truck or snow plow was traveling east on the Lincoln Highway and desired to turn north at the intersection. It stopped on the south side of the highway alongside of the bus. Two passenger cars were stopped behind the snow plow and behind the passenger cars was a second truck headed east, fully loaded. All of the vehicles were at rest, each standing on its own side of the road. After the bus had finished discharging and taking on passengers, it started westward up a slight grade on the Lincoln Highway. A tractor with oil tank trailer attached, alleged to be owned and operated by additional defendants, headed east and collided with the loaded
truck. The oil truck veered to the left or north and collided with the bus, causing considerable property damage and injuring the minor plaintiff.
Under the testimony it was a question of fact whether the driver of the oil truck used due care. The accident occurred in early afternoon in March; the weather was cold and it had been snowing all day; the road was slippery and snow was piled up at least two to two and one-half feet on the berm; the truck and semitrailer which caused the accident was carrying inflammable fuel oil, having a total weight of 65,000 pounds; the road was straight and flat; the driver testified that immediately before the collision he was traveling between twenty-five and thirty miles an hour on an icy road; there was a line of cars stopped back of the snow plow; the driver of the oil truck could not get his vehicle under control in time to avoid a collision with the last truck in line, which was the truck carrying a load of steel garage doors and sash and door frames; the oil truck drove the parked truck up over a bank and continued nearly one hundred feet when it hit the bus in which the minor plaintiff was riding, and drove the bus and another automobile toward the rear for a considerable distance.It is apparent that this raised solely a factual question which the jury resolved against the owner and operator of the oil truck.
One of the questions raised on appeal is whether or not the additional defendant, E. Brooke Matlack, Inc., is in any way liable. Appellees argue that because the additional defendants (brought in by the original defendant) failed to file an answer to their complaint, under Rule 1045 (b) of Pennsylvania Rules of Civil Procedure both additional defendants thereby admitted agency and control of the driver of the oil truck and therefore the verdict must stand ...