Appeals, Nos. 91 and 92, March T., 1954, from judgments of Court of Common Pleas of Mercer County, Sept. T., 1953, Nos. 730 and 739, in cases of Dorothy V. Gregg v. John D. Fisher and John E. Allison; and James E. Hoffman, Jr., Admr., Estate of Robert Trepanosky, deceased, v. Same. Judgments affirmed.
H. A. Robinson, with him Chauncey E. Brockway, Dickie, McCamey, Chilcote, Reif & Robinson, Albert E. Acker and Brockway, Acker & McKay, for appellant.
Martin E. Cusick and John V. Wherry, with them Hiram M. Drake, Wherry & Ketler, E. B. Madden, Wiesen, Cusick & Madden and George F. Mahaney, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The story of this case is one of indiscreet tilting of the bottle, reckless hands at the wheel, witless night racing over streets and railroad crossings, and vindictive rivalry born of crass jealousy plus primitive thinking. The result was a calamitous smash-up with death and mangling injury.
On the night of April 9, 1951, John D. Fisher and James Bell met at Dad's Grill in Grove City of Mercer County and planned an automobile drinking party. From Dad's Grill they proceeded to the City Grill and there invited Ruth Ann Garner, a girl 13 years of age, to accompany them on their contemplated alcoholic spree. Fisher then telephoned his girl friend, 22-year old Dorothy Gregg, and she joined the group in front of Dad's Grill some time after 11 o'clock. James Bell summoned his wife (Mary A. Bell), and then Ralph
King, a friend of Ruth Ann's, appeared on the scene to complete the party.
With Fisher at the wheel, the merrymakers headed for Mercer, Pennsylvania, drinking whiskey from a bottle as they travelled, Fisher not denying himself a share of the contents. Somewhere east of Mercer (by chance in front of Wilson's beer garden) Fisher ran off the road, but without resulting mishap. This erratic driving was repeated at least twice again on the journey. Some 25 miles out of Grove City, the gay travellers passed through Sharon and continued on to Masury, Ohio, where they entered the Brookfield Inn for an hour's drinking and then proceeded to the Sky Club, also beyond the Pennsylvania border, where further alcohol was ordered and consumed.
At the Sky Club, one of the girls met for the first time a Robert Trepanosky and he was recruited into the dramatis personae of this spirituous drama of the road. At about 2 a.m., Ruth Ann, the 13-year old, apparently more alert than the older heads about her, voiced the apprehension that Fisher's excessive drinking cast doubts on his ability to drive with safety. Trepanosky volunteered to ask his friend, John Allison, also in the night club, to take the girls home in his car, whereupon Allison entered the scenario of the impending and unfolding tragedy. Some time later, Dorothy and Ruth Ann proceeded on foot from the Sky Club across the State line into Pennsylvania, this being done because of the fear that some law might be violated by transporting the minor Ruth Ann across the boundary between Ohio and Pennsylvania. Allison waited for the girls on a street in Sharon.
John Fisher, while the party was still at the Sky Club, manifested considerable resentment over Dorothy Gregg's choice not to ride back with him to Grove
City, remonstrating to Alison: "Listen, fellow, you better let these girls go home with us." He then proceeded to argue with Dorothy that she should not travel in Allison's automobile. Unconvinced by his persuasions, Dorothy walked away from him and he made the cryptic remark (to become significant in the light of what followed) that she would be "sorry."
As the Allison car, now carrying as passengers Dorothy Gregg, Ruth Ann Garner and Robert Trepanosky, pulled away from where the girls had boarded it on the West State Street hill in Sharon, Fisher with the remainder of the party determinedly followed in its immediate wake. Fisher trailed the Allison car over various streets and was hard on Allison's rear as it entered Washington Street in Sharon and committed itself to the rumbling advance over the five railroad tracks which cut across that thoroughfare. Overtaking Allison on the railroad crossing, Fisher swung to the right, striking Allison's right rear bumper. He maneuvered to the right side of Allison's speeding automobile, apparently trying to outspeed it. As both cars passed over the last railroad track of the crossing, Fisher shot ahead and at a point estimated to be 21 feet 8 inches from the western end of the crossing, he suddenly cut his wheel to the left into the direct path of Allison and stopped. Allison jammed on his brakes and swung to the left to avoid the barricade of Fisher's car, but the momentum caused him to jump the curb, bound some 30 feet across a yard and crash head-on into a tree, the impact instantly killing Robert Trepanosky, knocking the two girls and Allison unconscious and inflicting serious injuries on both Allison and Dorothy.
Dorothy Gregg and the administrator of the estate of Robert Trepanosky brought separate suits against John D. Fisher and ...