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KOTAL v. GOLDBERG (11/24/53)

November 24, 1953

KOTAL, ADMR.,
v.
GOLDBERG, ADMRX., APPELLANT



Appeal, No. 26, May T., 1953, from judgment of Court of Common Pleas of York County, Oct. T., 1950, No. 149, in case of Joseph Kotal, Admr., Estate of Celestine Kotal, deceased v. Bessie Goldberg, Admrx., Estate of Geraldine A. Goldberg, deceased. Judgment affirmed.

COUNSEL

Henry C. Kessler, Jr., with him William C. Schultz, Jr., Luria & Still, Charles H. Still, Walliam A. Luria and Raymond R. Smith, for appellant.

Joseph Rothbard, with him Clarence M. Lawyer, Jr., and Rothbard & Rothbard, for appellee

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

Author: Musmanno

[ 375 Pa. Page 398]

OPINION BY MR. JUSTICE MUSMANNO

[ 375 Pa. Page 399]

The Pennsylvania Turnpike is renowned throughout the nation for its excellent construction, spacious dimensions, and engineering design, calculated to produce maximum safety with celerity of travel. It is made up of two separate highways, one eastbound and the other westbound, separated by a medial strip 10 feet wide, each comfortably accommodating two lanes of traffic moving in the same direction. The Turnpike has lately achieved, unfortunately, a reputation for sanguinary accidents which has somewhat blemished the proud banner which originally proclaimed it as the "Dream Highway." Most of the traffic fatalities and injuries on this stupendous thoroughfare have been traced to the demon of speed. Speed is the burden of this particular lawsuit.

On the evening of November 23, 1949, Geraldine A. Goldberg, owner of a 1949 Studebaker two-door Sedan, entered the Pennsylvania Turnpike at Carlisle, Pennsylvania, carrying with her a guest passenger, Celestine Kotal, antecedent of the plaintiff in this case. Their ultimate destination being Freeport, Pennsylvania, they traversed the distance from Carlisle to Donegal without mishap or incident, passing through the latter station at about 11 p.m. Some four miles west of Donegal, the westbound highway of the Turnpike "veers" to the left. At or about this point, the Studebaker caught up with a Schreiber truck-trailer, operated by Jack Greenawalt, which was moving at 50 miles per hour. In this "veering" area the Studebaker went ahead of the truck-trailer, passing it on the left with no deceleration of speed, estimated to be 60 miles per hour. Here the highway began a downgrade. The weather was dry, but the surface of the roadway was lighted only by the headlamps of the vehicles and the fitful illumination shed every 25 or 50 feet by "cat eyes", the glass reflectors atop the short posts bordering

[ 375 Pa. Page 400]

    the medial strip and the right side of the highway. After passing the heavy truck-trailer, the Studebaker continued at its same pace, but when the highway bent to the right, the Studebaker failed to take the curve, left the concrete and plunged into the middle untravelable space, knocking over several reflector posts. Its velocity unabated, it upset, righted, and turned over several times until it reached the middle of the eastbound lane when the vagaries of momentum sent it cartwheeling back across the medial strip and on to the westbound lane where it finally came to a stop, lying on its roof with wheels in the air. In the violent capsizings of the car, Mss Goldberg was thrown to the concrete of the eastbound lane and Mrs. Kotal to the berm of the westbound lane, both suffering mortal injuries resulting in practically instantaneous death.

At the trial of the lawsuit instituted by the administrator of the estate of Celestine Kotal against the administratrix of the estate of Geraldine Goldberg, the driver of the Schreiber truck-trailer testified to the happening of the tragic event. The jury returned a verdict in the sum of $10,182.00. The defendant moved for judgment n.o.v. and for a new trial. Both motions were refused by the court below and this appeal followed.

The defendant argues that the decedent driver committed no act of proved negligence and that the jury was permitted to guess as to the cause of the accident. The jury could well find from the evidence that the cause of the crash was the excessive speed of the Studebaker car under the particular circumstances of the highway. In Knox v. Simmerman, 301 Pa. 1, the nature of the accident was sufficiently analogous to the one before us to apply to this case the principle therein enunciated: "It was a clear day on a broad dry pavement, the coupe was in the exclusive control of the

[ 375 Pa. Page 401]

    defendant, and the accident was such as under normal conditions does not occur; hence, it so happening, unexplained, would justify a jury in presuming the defendant was negligent. It is not a case of res ipsa loquitur, for negligence is not presumed from the mere happening of the accident, but from the circumstances under which it occurred. It was an abnormal occurrence such as in the usual course of events does not occur. An automobile when driven along a dry level road in daylight at proper speed and under control is not accustomed to leave the pavement and dash against a stone pile at the road side. That the coupe did this very extraordinary thing is some evidence that it was not properly driven. In Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497, 504, the rule is stated, that, 'When the thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from a want of care.'"

Certainly, if the defendant's decedent had driven around the Schreiber truck-trailer and had approached the curve to the right at proper speed and under control the deplorable double death would not have occurred.

Defendant's counsel in his brief says: "... the answer as to why this car left the highway is open to pure speculation. Did the driver become ill? Did she have a heart attack? Did a mechanical defect assert itself suddenly and throw the automobile out of control? Did the left front wheel, without warning, come loose from the machine, throwing the car out of control? ... Was there some object on the road which threw the car out of control? All of these questions

[ 375 Pa. Page 402]

    are unanswered either directly or by reasonable inference by the proof submitted by plaintiff, yet they are equally or more consistent with what happened than is the unwarranted assumption that the safe driver all at once became a negligent driver."

Of course, there is no limit to the number of imaginative situations which may be conjured up to hypothetically explain away an accusative set of circumstances. It can be argued in the realm of uninhibited conjecture that the victim of an assassin's bullet might have died of a heart seizure before the bullet penetrated his chest and unless the prosecution can eliminate every heart malady as the cause of death, no conviction is possible. In Saganowich v. Hachikian, 348 Pa. 313, this Court said: "... the law does not require the elimination of every possible cause of the accident other than that on which plaintiff relies, but only such other causes, if any, as are fairly suggested by the evidence... Proofs to a degree of absolute certainty are rarely attainable; it is sufficient that they be such as to satisfy reasonable minds."

Also, in Liguori v. Philadelphia, 351 Pa. 494: "... it is equally well settled that, since proof to a degree of absolute certainty is rarely attainable in any litigated factual controversy, the law requires only that the evidence as to the operative cause of the accident be enough to satisfy reasonable and well-balanced minds that it was the one on which the plaintiff relies."

That, of course, is the very principle upon which the jury system is based, i.e., that disputed facts and disputed inferences from established facts shall be submitted to twelve reasonable and well-balanced minds. And when they unanimously are of accord that from certain facts it is inevitable that common sense and logic dictate only one reasonable conclusion, that conclusion

[ 375 Pa. Page 403]

    will be accepted by the law as trustworthy and true.

When the driver of a car crosses over to his wrong side of the road and strikes another car on its right side of the road, a prima facie case of negligence is made out against the first driver. And the injured person is not required to produce a blue print to show why the offending motorist acted in the manner he did. A fortiori, the representatives of the victim of a driver who dashes completely off the highway with such velocity that the car overturns numerous times has no legal burden to explain the mechanical, mental or muscular lapse which precipitated the catastrophe.

Geraldine A. Goldberg had a duty to exercise ordinary care in the operation of her vehicle for the safety of Celestine Kotal, her guest passenger: Conroy v. Commercial Casualty Ins. Co., 292 Pa. 219; Ferrell v. Solski, 278 Pa. 565. Whether she acquitted herself of that legal duty was a question of fact for the jury.

The defendant complains that the court did not charge sufficiently on the subject of circumstantial evidence, but this was not a case where circumstantial evidence would conclusively and exclusively tip the scales of the verdict one way or the other. The plaintiff produced an actual eye witness of the dreadful happening and the defendant produced another. Their stories somewhat conflicted as to details of the occurrence, and the jury believed the plaintiff's witness.

While it is true, as defendant's counsel submits in his brief, that one who loses his life in an accident is presumed to have exercised due care, it is equally true that this presumption is a rebuttable one. The jury by its verdict decided that the presumption dissolved under the impact of the physical facts and the testimony of an eye witness; and we are satisfied that the record supports that dissolution.

[ 375 Pa. Page 404]

In his charge to the jury the able Trial Judge in the court below indicated that if the jury believed that a tombstone costing $350 was properly a part of the "funeral expenses" allowable under the Wrongful Death Act, that item could be included in the verdict. The jury found that it was part of the funeral expenses and ...


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