Appeal, No. 131, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, July T., 1948, No. 82, in case of Harry R. Kunkle v. Continental Transportation Lines, Inc. Judgment affirmed.
Joseph F. Weis, Jr., with him Joseph F. Weis and Sherriff, Lindsay, Weis & McGinnis, for appellant.
Robert B. Ivory, with him Evans, Ivory & Evans, for appellee.
Before Stern, Stearne, Jones, Bell and Musmanno, JJ. .
OPINION BY MR. JUSTICE MUSMANNO
On October 31, 1947, the plaintiff in this case, Harry R. Kunkle, left New York with a trailer truck destined for Cleveland. Rolling over the highway on this journey he attempted at a point near Progress, Pennsylvania, to pass around an automobile which had suddenly slowed down as if to make a turn. While performing this maneuver the trailer tilted to the left causing the driver to lose control over the steering, with the result that the huge vehicle ploughed across the highway and crashed into the inevitable telegraph pole along the road. Kunkle was considerably injured and his vehicle considerably damaged.
The ensuing lawsuit propounded one important question of fact. Did the trailer lose balance because its cargo had been improperly loaded or because the driver failed to exercise the skill and care required to successfully accomplish the maneuver already described?
Aboard the truck was a lithographing machine weighing some 16,000 pounds. It had been loaded on the extreme left of the trailer and rested on its 6 inch side with its 5 feet 5 inch width extending almost to the top of the trailer. The rest of the cargo was made up of bulky, light material weighing about 7500 pounds.
The loading had been done under the supervision of one Dupres employed by the defendant Continental Transportation Lines, Inc., for which firm the plaintiff was transporting the load in question. The defendant company averred that if the lithographing machine was improperly loaded, the plaintiff was as much at fault in this respect as the defendant because he, the plaintiff, was present at the time of the loading process. The plaintiff explained in meeting this charge that although he was present, sitting in the cab of the vehicle at the time, he purposely refrained from taking any part in the loading operation because the loaders were union men and resented any interference on the part of an owner-driver.
The defendant company maintained further that the plaintiff had the right of inspection and it was his duty to ascertain if the cargo had been properly stored before starting on his journey, especially in view of the fact that the plaintiff admitted that the trailer listed somewhat before leaving New York.
The case was twice tried and both juries returned verdicts for the plaintiff. The second trial was ordered ...