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JULIAN ET AL. v. TORNABENE ET AL. (07/17/52)

July 17, 1952

JULIAN ET AL.
v.
TORNABENE ET AL.



COUNSEL

Bresci R. P. Leonard, Van Der Voort, Royston, Robb & Leonard, Pittsburgh, Pa., William C. Porter, Washington, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 171 Pa. Super. Page 334]

DITHRICH, Judge.

In this action in trespass plaintiffs recovered verdicts for damages for personal injuries resulting from an automobile collision which occurred about 5 p. m.

[ 171 Pa. Super. Page 335]

    on May 31, 1948, in Mahoning County, in the State of Ohio, at the intersection of Route 45 and Gladstone Road, about 7 miles south of Warren, Ohio. They were guest passengers in an automobile owned by Harold G. Johnson, one of the defendants, and driven at the time of the accident by the other defendant, Alphonse L. Tornabene. Johnson was an occupant of the car.

[ 171 Pa. Super. Page ]

The Ohio law determines the substantive rights of the parties, that state being the place of the alleged tort. Rodney v. Staman, 371 Pa. 1, 89 A.2d 313. The Ohio Guest Statute, Vol. 4A, Page, Ohio General Code Annotated, ยง 6308-6, permits a recovery by plaintiffs only if their injuries were caused by the 'wilful or wanton misconduct' of defendants. The case was tried in Washington County, Pa., and resulted in verdicts in favor of plaintiffs and against both defendants, who were found guilty of wanton misconduct. Following the verdicts, defendants moved for judgment n. o. v., while plaintiffs moved for a new trial on the ground that the verdicts were inadequate. Plaintiffs' motion was granted and no appeal taken. Defendants' appeal is from the order overruling their motion for judgment n. o. v.

In the evening of May 29, 1948, plaintiffs and three young men -- Johnson, Tornabene and Jacob Zirway -- drove from Carnegie, Pa., plaintiffs' home, to Geneva-on-the-Lake, Ohio, where they planned to spend the Memorial Day weekend. About noon on Monday, May 31, the men met the girls on the beach and told them that if they wanted to ride back home with them they would have to leave that afternoon because Tornabene had a date at home that evening. They had planned to spend the day at the beach but they started home about 3 p. m., with Tornabene at the wheel. The party traveled south on Route 45, a two-lane blacktop highway, making two stops prior to the accident -- one at a gasoline station and another at a refreshment stand

[ 171 Pa. Super. Page 336]

    some 15 miles north of Warren. Although traffic was heavy and the posted speed limit was never higher than 50 m. p. h., after leaving the refreshment stand Tornabene drove 65 to 70 m. p. h. After passing through Warren, where traffic moved very slowly, he drove at speeds of 75 and 80 m. p. h. While traveling at high speed, he went through stop signs without stopping; he played with the steering wheel as he kept time to radio music; and he took rash chances in passing on curves where he did not have a full view ahead and also passed other cars on the straightaway when oncoming traffic made passing unsafe. On at least one occasion his reckless driving forced a car coming toward them off the road. The manner in which Tornabene drove caused plaintiffs great concern and fright. They protested several times but to no avail. Even Johnson, the owner of the car, couldn't relax but felt he had to keep watching the road. When Tornabene made the particularly dangerous passing referred to, one of the men said, 'Al, what are you trying to do?' Tornabene's rejoinder to the complaints was, 'Why don't you people calm down? I'll get you home all right.'

When the Johnson car was some 300 feet from the intersection where the collision occurred, Mary Bewick, one of the plaintiffs, saw an automobile traveling east on Gladstone Road and approaching Route 45. When the other car was 55 to 150 feet from the intersection, being half as far from it as was the Johnson car, its speed was noticeably increasing. Tornabene, who had been driving at 65 to 70 m. p. h., increased the speed of the Johnson car, saying, 'Who does he think he is?' At the same time the girls on the front seat, being frightened, called a warning. The speed of neither car was slackened as it raced toward the intersection, ...


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