Appeal, No. 167, Jan. T., 1953, from judgment of Court of Common Pleas of Luzerne County, Dec. T., 1951, No. 975, in case of G. Marie Hines, Admrx., Estate of Howard D. Hines, deceased v. Aldo S. Fanti and Jerry Rubbico. Judgment affirmed.
E. C. Marianelli, with him Gomer W. Morgan, for appellants.
Max Rosenn, with him Harold Rosenn and Rosenn & Rosenn, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On April 26, 1951, Howard Hines, a driver of eighteen years' experience, sat at the wheel of his eight-ton
International truck as it rolled southwardly along Route 11, a three-lane highway, on the way from West Nanticoke to Hunlock's Creek, both in Luzerne County, Pennsylvania. It was 8 o'clock in the morning, the weather clear and dry, the visibility good, when Hines, overtaking a nine-ton GMC truck, passed uneventfully around it and returned to his side of the highway. The GMC truck, (driven by Aldo S. Fanti), routinely followed in the wake of the Hines truck until both vehicles reached the bottom of a slow descent and then began a slight ascent. Suddenly the Hines truck veered to the right, travelled some 100 feet on the berm or "embankment" flanking the roadway, ran into a retaining wall, and climbed the barrier until momentum and gravity threw it back into a half somersault. It finally came to rest, overturned, partly in the southbound and partly in the center lane of the road, Hines crushed to death in the demolished cab.
G. Marie Hines, his widow, as administratrix of his estate, and on behalf of herself and three minor children, brought suit against Aldo S. Fanti, the operator, and Jerry Rubbico, the owner of the GMC truck, charging that Fanti, in seeking to pass Hines on the highway, struck the left rear portion of the Hines truck, forcing it off the highway and into the culminating disaster. At the ensuing trial, the jury returned a $25,000 verdict for the plaintiff and against both defendants, who have appealed for a judgment non obstante veredicto.
For convenience and clarity in narration and exposition the truck driven by Fanti will be referred to here as the Fanti truck, and the truck driven by the decedent will continue to be called the Hines truck.
The defendants contend that the Fanti truck did not touch the Hines truck prior to the accident and they advance the theory that the tragedy of Hines was the result of his ...