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RUSSELL v. UNITED STATES

July 3, 1953

RUSSELL et al.
v.
UNITED STATES (Mitcheltree et al., third-party defendants)



The opinion of the court was delivered by: FOLLMER

This action was instituted by the plaintiffs against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., to recover for damage to personal property owned by them, which damage occurred when a tractor-trailer rammed into a house occupied by them as tenants, after colliding with a United States Post Office bus owned by defendant. The United States of America as third-party plaintiff brought into the action Theodore L. Mitcheltree (the driver of the tractor-trailer), Cyril A. Pitoniak (the owner of the tractor), and Mushroom Transportation Company, Inc., (the owner of the trailer) as third-party defendants.

It was agreed by the parties that the evidence be presented in a jury trial, with the jury rendering a special verdict on the question of negligence of Mitcheltree (the driver of the tractor-trailer), who was conceded to be the agent of the other third-party defendants, and that the Court decide the main action on the basis of the evidence so presented, *fn1" together with supplementary evidence on the matter of damages, with which the jury was not concerned.

 Findings of Fact

 The facts are:

 1. The plaintiffs are, and at the time of the occurrences herein set forth were, the tenants on a farm situated in the Village of White Deer, Union County, Pennsylvania, on which was erected, along United States Highway Route No. 15, a frame dwelling house.

 3. At the same time and place, one Joseph Shank, an employee of the United States of America and within the scope of his employment, was operating a United States Post Office bus in a northwesterly direction on a side road in the Village of White Deer, known as 'Old Main Street' or old Route No. 15, to a point where same, at an angle, entered the United States Highway Route No. 15, and continued driving said Post Office bus onto said main United States Highway Route No. 15 in a northerly direction.

 4. There was a Highway Department 'Thru Traffic Stop' sign on said 'Old Main Street' at its point of entrance onto United States Highway Route No. 15.

 5. At the time Shank drive the Post Office bus onto the main highway there was a clear view to his left (the direction from which the tractor-trailer was approaching); he saw the tractor-trailer approaching at a speed which he estimated at 40-50 miles per hour; the road was wet, slushy and slippery; the tractor-trailer, which had the technical right-of-way, was only 350 to 400 feet away; Shank proceeded onto the main highway on an arc which took the front of the Post Office bus beyond the center of the highway, and at the time of collision the front left of the Post Office bus was still beyond the center of the highway.

 6. Shank negligently operated the Post Office bus in entering the main highway from the side road, past a stop sign with all the dangers and conditions present at the time he did so, and such negligence was a proximate cause of the accident.

 7. The jury, by a special verdict, found that Theodore L. Mitcheltree was also negligent in his operation of the tractor-trailer and that this was a contributing proximate cause to the accident.

 8. The tractor-trailer, after colliding with the Post Office bus, swerved to the left, ran off the road and struck the house occupied by the plaintiffs, with such force that the front porch was torn off, the corner of the house demolished, the front of the house moved 17 feet off its foundation, the floors buckled, the walls cracked and damaged, the plaster knocked off a large part of the ceilings and walls, the chimney destroyed, the roof damaged, the general frame work of the building thrown out of plumb, and the foundation wall damaged. Plaintiffs' furniture was tossed around and broken, as well as being damaged by falling plaster and debris, with carpets and linoleum being torn beyond repair by the buckling of the floors. The impact of the truck, which made a gaping hole in the corner of the house, destroyed furniture located in that corner, including a set of dishes packed in a box and stored there.

 9. By reason of the collision of the tractor-trailer with the house and the damage sustained to the house, it was rendered untenantable and the plaintiffs lost the value of their lease from December 15, 1950, to April 1, 1951, and were forced to obtain other quarters some distance from their farm property.

 10. As a result of the aforesaid collision, the plaintiffs suffered the following items of damage:

 A. Loss of the use of leased premises, in the amount of $ 84.00, composed of articles as follows:

 Cost of leasing of other premises . . ...


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