Appeal, No. 38, March T., 1953, from order of Court of Common Pleas of Greene County, March T., 1950, No. 85, in case of Kenneth L. Fox et ux. v. Bernard Mulvaney et al. Judgment affirmed.
R. Wallace Maxwell, for appellants.
John I. Hook, Jr., with him Scott & Hook, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Kenneth L. Fox and Gail K. Fox, his wife, instituted an action in trespass against Bernard Mulvaney to recover damages sustained by each of them arising
out of a collision between the husband-plaintiff's Buick sedan and the defendant's 3/4 ton pick-up truck. Defendant brought in the husband-plaintiff, the owner and operator of the automobile, as an additional defendant and counterclaimed for damages done to the defendant's truck and for loss of its use. The case was tried and the jury returned a verdict "... in favor of Bernard Mulvaney not guilty of negligence.". Plaintiffs filed a motion for new trial which was denied, and this appeal is from the judgment accordingly entered.
The accident occurred at 6:30 p.m., April 5, 1949, on a curve in a black top road in Whiteley Township, Greene County, Pennsylvania. It was dusk and raining. The husband-plaintiff, accompanied by his wife and 2 1/2 year old child, was driving his automobile in an easterly direction and the defendant was operating his truck in a westerly direction. The road was approximately 14 feet in width with a dirt berm on the south of about 4 feet, and on the north of about 3 feet. There was a guard fence along the outer edge of the south berm where the accident took place. At the outer edge of the north berm there was an embankment extending upward approximately 8 or 10 feet above the level of the highway, which impaired the view ahead of drivers of vehicles traveling in either direction. There was a descending grade in the road going from west to east. The road at the curve was banked, the south edge being higher than the north edge and there was testimony that the south edge was between 8 and 10 inches higher than the adjoining berm. A state policeman testified that this was a "sudden" drop-off. The operator of each vehicle claimed to have had his parking lights on.
The plaintiffs' version of the occurrence was that they were traveling about 15 miles an hour; that the
husband-plaintiff saw defendant's truck approaching on the plaintiffs' side of the road when it was from "fifty and a hundred feet" away; that he turned to the right onto the berm, scraped along the guard fence for about 50 feet when the left front of defendant's truck struck the left front of plaintiffs' car. The defendant's versions was that he was ascending the curve in second gear from 15 to 25 miles an hour; that he was traveling on his (the north) side of the highway about a foot from the berm which he said was soft because "... it had been raining for two or three days,...". When asked whether he observed any lights on plaintiffs' vehicle, he stated, "There was no lights.". Defendant testified that after the accident the rear of plaintiffs' car was against the guard fence on the south side of the road but both front wheels on the black top; other witnesses placed the right front of plaintiffs' car on the berm about 2 feet from the guard fence with both left front and left rear wheels on the black top. A state policeman testified it was in a "catty-corner position". Defendant also testified that after the accident his truck was "... straight in the road, all wheels were on the ...