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BRUSIS v. HENKELS (01/11/54)

January 11, 1954

BRUSIS
v.
HENKELS, APPELLANT



Appeals, Nos. 199 and 200, Jan. T., 1953, from judgments of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1949, No. 2971 and Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1949, No. 4633, in cases of William Brusis v. John B. Henkels, Jr., et al., trading as Henkels & McCoy and William H. States, Jr. v. John B. Henkels, Jr., et al., trading as Henkels & McCoy v. William Brusis. Judgments reversed.

COUNSEL

John Paul Erwin, with him George D. Sheehan and Perry S. Bechtle, for appellants.

Thomas Z. Minehart, with him Charles A. Rothman and Melvin Alan Bank, for appellees.

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

Author: Bell

[ 376 Pa. Page 227]

OPINION BY MR. JUSTICE BELL

This involves two actions in trespass, arising out of the same accident, which were consolidated for trial before a judge and jury. One suit was brought by the operator of a tractor-trailer for personal injuries sustained by him, and the other by its owner for damages to the vehicle. In the latter action, defendants joined the operator as an additional defendant. Verdicts were rendered in favor of both plaintiffs. A third verdict was also rendered in favor of the operator as the additional defendant in the owner's case. Defendants filed motions for judgment n.o.v. and new trial, which were dismissed by the Court en banc. From the judgments entered on the verdicts, defendants now appeal.

Taking the evidence in the light most favorable to plaintiffs, and resolving all conflicts in the evidence in their favor, as we must where a defendant is seeking judgment non obstante veredicto, the facts may be thus summarized:

Plaintiff Brusis was operating on November 4, 1949 at about 12:30 o'clock A.M. a tractor-trailer owned by plaintiff States in an easterly direction on Street Road, Bucks County, Pa. The vehicle at its widest point was 7 1/2 feet wide and 42 to 45 feet long over all. The gross weight of the loaded vehicle was 30,500 pounds.

Street Road is a macadam paved highway eighteen feet in width bounded on each side by dirt shoulders or berms. Brusis was traveling at a speed of about twenty-five miles an hour as he approached a curve bearing to his left. When one hundred to one hundred fifty feet from the curve, he saw an automobile without lights parked at the curve partly on the paved portion

[ 376 Pa. Page 228]

    of the highway and partly on the south shoulder. Brusis swung the tractor-trailer to the left and in passing the car, drove off the road on to the berm on the north or left side and immediately felt the left front wheel of the tractor sink in the shoulder, which he said was soft mud. The left front wheel started to sway and swing. Brusis, trying to get off the berm, kept his foot on the gas for a distance of approximately 50 feet when he crashed into a utility pole on the berm, with the result that the tractor-trailer turned over and Brusis was injured. The defendants, in order to install a ten inch gas pipe, had been excavating and backfilling a trench along the north berm of Street Road for a distance of about 8 miles. The trench was 18 inches wide and the southern edge was 15 inches to 2 feet north of the paved portion of the highway. The trench had been properly filled in by defendants 30 days prior to the accident. Plaintiff's witness, who was in charge of this work for the Commonwealth, testified that defendant had placed (a) "Road under Construction" signs along the entire route, and (b) signs along this 8 mile highway every 200 feet with the words "Soft Shoulders" printed thereon, so that they could be easily seen by vehicles approaching on the right side of the road where the pipe was laid. This evidence must be disregarded because the plaintiff himself said he saw no signs. The paved portion of Street Road has a white center line which divides the highway for eastbound and westbound traffic and is, we repeat, 18 feet in width. Even if the parked car had not been parked partly on the berm, it would have left ample space for a carefully driven tractor-trailer to pass by on the other side of the macadam paved highway.

"... 'The mere happening of an accident is no evidence of negligence.... ...


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