Appeal, No. 62, Jan. T., 1952, from order of Court of Common Pleas of Berks County, April T., 1950, No. 52, in case of Louis Dobb v. Peter I. Stetzler, Peter Lombardo and Sebastian Lombardo, trading as Lombardo Brothers. Order reversed.
Thomas B. K. Ringe, with him Edward G. Wink, J. Wesley Oler, James W. Bertolet and Morgan, Lewis & Bockius, for appellant.
Robert I. Cottom and Ralph C. Body, with them Matten & Matten, R. Solomon Baer, William George and Body, Muth, Rhoda & Stoudt, for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Plaintiff, Louis Dobb, was struck and injured by a wheel which came off an automobile, owned by Ralph
Thren, while it was being towed by an employe of defendant, Peter I. Stetzler. At the close of plaintiff's case, the learned court below entered a compulsory non-suit, and, from the order refusing to remove it plaintiff was brought this appeal.
The automobile was a 1935 Chevrolet coupe which Thren had purchased on February 19, 1949, from additional defendants, Peter and Sebastian Lombardo, trading as Lombardo brothers, for $195. Two days after the sale was made, Thren was obliged to return the car to Lombardo Brothers to have a shimmying condition in the right front wheel corrected. However, he did not again experience any difficulties with the wheels of the car although he subsequently drove it 150 to 200 miles a week during the sixteen weeks he owned it prior to the accident. Thren never troubled to place the car in a garage or under a shelter of any nature, but left it on the street at all times, exposed to the varying weather conditions. On occasion he removed the front wheels to change tires and in doing so used a jack which raised the body of the car by exerting an upward pressure on the front wheel axle.
Late in the afternoon of June 12, 1949, while Thren was driving the car around a curve on a country road near Blandon, Pennsylvania, the left front wheel came off. The left forward part of the car immediately dropped to the road, landing on the backing plate of the brake drum of the left wheel and slid along on the plate for a distance of approximately 15 feet before Thren was able to bring the car to a stop. As this plate did not revolve it tended to make the car turn to the left and Thren experienced difficulty in steering the car so as to follow the curve of the road to the right. The scraping of this plate across the road also left a skid mark 15 feet long which was clearly visible on the macadam surface of the road.
Mitchell, Stetzler's employe, who was sent at Thren's request with a tow truck to haul the car to Stetzler's garage, noticed the skid mark when he arrived on the scene, as well as the fact that the left front wheel was off the car. However, he did not examine the right front wheel to determine whether it had been loosened as a result of the accident, but immediately prepared the car for towing by fastening the ends of a chain to the left and right front bumper supports of the automobile and then raising the entire front end with a hoist mounted on his truck. Mitchell still did not examine the right front wheel closely while he had the car thus ...