Appeal, No. 229, Jan. T., 1951, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1949, No. 3217, in case of Adley Express Company, Inc. v. Henry Willard and The Salvation Army. Judgment reversed.
Reuben E. Cohen, with him Cohen & Cohen, for appellant.
Thomas E.Comber, Jr., with him William R. Klaus and Pepper, Bodine, Stokes & Hamilton, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Adley Express Company, Inc., brought this action of trespass against Henry Willard and The Salvation Army to recover for damage done to plaintiff's tractor-trailer operated by Harold Williams, when it and a truck belonging to The Salvation Army and driven by Willard, collided. Before the trial commenced, on plaintiff's motion, a voluntary non-suit was entered as to The Salvation Army because of it being an eleemosynary institution. The case then proceeded to trial against the individual defendant, Willard, and a jury returned a verdict in his favor. Plaintiff's motion for new trial was refused and this appeal is from the judgment entered on the verdict.
The appeal is directed solely at the trial judge's charge to the jury which is claimed to have been erroneous in (1) unduly emphasizing the defendant's version of the accident; (2) misapplying the law to the facts. While more reference was made by the trial judge to the defendant's account of the accident than to that of the plaintiff, the charge was not so unbalanced in this regard as to constitute error. However, the appellant's second contention must be upheld and a new trial awarded. The accident happened at about 8 a.m. on March 10, 1948 on that portion of U.S. Route No. 1 leading from New York to Washington, D.C. known, as it passes through Philadelphia, as Roosevelt Boulevard. It was daylight. The roadway was wet, but this condition played no part in the accident. The two vehicles collided on or near the north end of a bridge on the boulevard known as Pennypack Bridge. On this bridge and to the north and south of it the boulevard consists of four parallel lanes, two for south-bound and
two for north-bound traffic. Each pair of lanes is 22 feet in width. North of the bridge the south-bound and north-bound lanes are separated by a grass plot 20 feet in width. At the south end of this grass plot there is a monument and some bushes and trees which somewhat obstruct from view oncoming vehicles on the one set of lanes from motorists on the other. The distance between the north end of the bridge and the near or south end of the grass plot divider was not given exactly, but it appears from the testimony to have been about 50 feet, and here the north lanes and south lanes converge so as to become contiguous. They do not merge and the two north-bound and two south-bound lanes continue over the bridge of the same respective over-all widths. The converging of the two sets of travelled lanes is gradual and does not prevent vehicle drivers from having a clear unlimited view ahead of the lanes on which they are travelling. There is no crossroad between the grass plot divider and the bridge. There is a slight down-grade on the south-bound lanes as they approach the bridge.
The only witnesses who testified as to the happening were Williams, the driver of plaintiff's truck, and the defendant driver and helper on The Salvation Army truck. Williams, who was driving southward with the plaintiff's tractor-trailer with a 28,000 pound load, testified that after passing a very slow-moving heavily loaded truck he was on the left or inner south-bound lend as he neared the end of the grass plot divider, and was travelling between 25 and 30 miles per hour; that he first saw the defendant's truck when it was 25 feet from him, having come from behind the monument and bushes, travelling westward at right angles to the south-bound lanes; that he tried to stop and turned toward the left but because of another vehicle travelling northward had to turn back and then struck
the right rear of the defendant's truck; that he did not sooner see the defendant's truck because of the monument and shrubbery; that after the accident he asked the defendant to sign a card supplied by his employer, after stating thereon "what happened". At the trial defendant admitted ...