Appeals, Nos. 65 and 71, March T., 1952, from orders of Court of Common Pleas of Washington County, Aug. T., 1949, No. 145, in case of Walter Phillips v. John R. Cowden and Gilbert H. Latham. Orders affirmed.
H. Gilmore Schmidt, with him John M. Reed, Earl F. Reed, J. Roland Johnston, Earl F. Reed, Jr. and Thorp, Reed & Armstrong, for defendant John R. Cowden, appellant.
George I. Bloom with him George B. Stegenga and Bloom, Bloom & Yard, for plaintiff, appellant.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an action in trespass for personal injuries in which the jury rendered a verdict for $100,000.00 against both defendants. Defendant Latham accepted the jury's verdict; defendant Cowden filed motions for new trial and judgment n.o.v. The court below granted a new trial against both defendants and refused judgment n.o.v. Plaintiff appeals from the grant of a new
trial, and defendant Cowden appeals from the refusal of judgment n.o.v. In this situation we are required first to decide whether defendant's motion for a new trial was properly granted. If so, we have no occasion to consider his motion for judgment n.o.v. See Beal v. Reading Company, 370 Pa. 45, 87 A.2d 214.
The accident out of which this suit arose occurred about 6:30 a.m. on February 21, 1949, on Route 980, approximately three and one-half miles north of McDonald, Pennsylvania. Plaintiff was riding in the front seat of an automobile owned and operated by defendant Latham as they were travelling toward their common place of employment. Plaintiff testified that Latham was driving at about forty-five miles per hour. The road was dry; the weather was clear; and it is stipulated that the sun rose at six minutes after seven. As they rounded a slight curve and proceeded along a straight stretch of the highway, plaintiff noticed a ball of smoke on the right hand side of the road about three or four hundred feet away. Plaintiff testified that he told Latham, "Look out, you had better stop," but Latham denies that any such warning was given. The car continued into the smoke at somewhat reduced speed and crashed into the rear of a standing truck owned by defendant Cowden. There is a conflict in the testimony describing the location of this truck; it was either entirely on the concrete road or partly on the concrete and partly on the berm. Whether or not the lights of the truck were lit is also in dispute, but it is admitted that no flares were placed on the road. Defendant's driver explained the presence of the truck by saying that he noticed a light underneath the floor boards of the truck and smelled smoke; that he immediately brought his truck to a stop, grabbed a fire extinguisher, got underneath the truck and just succeeded in extinguishing a fire around the emergency brake
when the Latham car crashed into the truck. Latham testified that at the time of the accident it was so dark that he needed his bright lights and that as he approached the smoke he was momentarily blinded by the lights of a car coming in the opposite direction. Plaintiff had testified that it was bright enough to drive without headlights; the established facts relating to weather conditions and the hour of sunrise would tend to corroborate the plaintiff's testimony on this point.
This conflicting testimony raised two separate questions for determination by a jury: (1) Under all the circumstances of the case, was it negligence for the employe of defendant Cowden to have his truck situated where it was at the time Latham's car struck it, and (2) If so, was this negligence a proximate cause of plaintiff's injuries or was there an intervening act of negligence by defendant Latham which was the sole proximate cause of the accident and insulated Cowden from liability for his employe's negligence? In a number of strikingly similar cases we have decided that both of these issues should be determined by a jury unless the facts are undisputed: Harkins v. Somerset ...