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FERNE v. CHADDERTON (11/17/53)

November 17, 1953

FERNE, ADMRX.,
v.
CHADDERTON, APPELLANT



Appeals, Nos. 208 and 209, March T., 1953, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1946, No. 240, in case of Esther Levina Ferne, Admrx., Estate of Harry A. Ferne, alias dictus, Harry Adam Ferne, deceased, v. Edward W. Chadderton, trading as Chadderton Truck Lines and Herbert Groce. Judgment affirmed.

COUNSEL

Carroll Caruthers, with him William F. Caruthers and Ben H. Marks, for appellants.

Fred B. Trescher, with him Kunkle & Trescher, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Musmanno

[ 375 Pa. Page 303]

OPINION BY MR. JUSTICE MUSMANNO

On the evening of January 24, 1945, between 6:30 and 7:30 o'clock, a tractor-trailer, being operated up a steep ascent on an ice-and-snow encrusted highway over Freeport Hill at Garvers Ferry in Westmoreland County, failed of traction, slid and skidded backward, turning and twisting in its descent until, when it finally stopped, the tractor covered the right side of the road and the trailer jack-knifed across the highway, its rear wheels imbedded in the adjoining ditch. The multiple-vehicle thus blocked the highway in both directions. Night having fallen, with darkness enveloping the entire area, the operator Herbert Groce became charged with an immediate duty to warn all wayfarers of the hidden danger serpentinely stretched across the Freeport Hill road.

Although the tractor still flickered its feeble headlights, the trailer, on the other side of the highway, carried no illumination whatsoever. The peculiar topography of the adjacent terrain, and the contour of the road itself, masked the trailer so that it would not be visible to any approaching vehicle until it was within 100 or 125 feet of its lurking presence. Common prudence and a due regard for the safety of others dictated to Groce the imperative necessity of setting up flares. More than that, an Act of Assembly required him to do so.*fn1 He ignored both his moral and legal responsibilities in the circumstances, and the accident, which is the basis of this lawsuit, inevitably resulted.

Harry A. Ferne was driving a tank truck in a northwardly direction on the Freeport Hill road (Groce had

[ 375 Pa. Page 304]

    been proceeding southwardly) that night. Surmounting the crest on the highway and starting down the descent approaching the scene of Groce's derelict in the ice and snow, Ferne did not see the obstruction until within some 100 feet of it. Applying his brakes, the tank truck skidded, veered to the side of the road, and crashed against the guardrail throwing Ferne violently against the steering wheel. From this impact Ferne sustained serious injuries in and about his chest. On October 22, 1945, 10 months later, he died.

The verdict which the plaintiff (decedent's widow) received at the first trial of this case was appealed to this Court and the requested motion for judgment n.o.v. was denied. The case was sent back, however, for a new trial for reasons not necessary to relate here.

At the second trial, the new jury also found for the plaintiff, and the defendants (Groce and his employer Edward W. Chadderton, trading and doing business as Chadderton Truck Lines) have again appealed, once more seeking judgment n.o.v., and, failing in that, another trial. No new facts were presented at the second trial which would warrant any change in our decision of November 14, 1949, where Mr. Justice HORACE ...


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